Friday, July 19, 2013
Saturday, July 6, 2013
Private Citizen Militias
Following is the text of a sidebar to an article in the April, 1995, issue of Soldier of Fortune magazine, page 48, entitled "..necessary to the security of a free State...", by Mike Williams. The sidebar, by Wayne Anthony Ross, appears on page 52. There are numerous defects in this sidebar, and some defects in the main article. I provide a critique of the sidebar first, then of the article, following the text of the sidebar. Readers are invited to offer further criticism and to convey them to Robert K. Brown of Soldier of Fortune, 5735 Arapahoe Ave, Boulder, CO 80303-1340, 303/449- 3750.
The sidebar is here recomposed for fax transmission, and because the author had an advance copy of it a month prior to publication, choosing not to react to it until after it was published in its final form, in case some of the defects might have been removed in editing. They weren't.
Join A Militia -- Break The Law?
Legal research on the subject of militias raises the question of their authority to organize. Article 1, Section 8 of the Constitution of the United States provides that: "The Congress shall have the power ... To provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions ... To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of officers, and the authority of training the militia according to the discipline prescribed by Congress."
The Second Amendment reads: "A well regulated militia being necessary [for] a free State, the right of the people to keep and bear arms shall not be infringed."
The Constitution, therefore, demonstrates that militias are a creature of the state, subject to being called forth by the U.S. government "to execute the laws of the Union..." This is bolstered by the wording of the Second Amendment which holds, "A well regulated militia being necessary [for] a Free State..." and by Article 1, Section 8, Subsection (16), which reserves to the states "the appointment of officers and the authority of training the militia..."
Title 10, U.S. Code, Section 311 further stipulates that the militia consists of all able-bodied males aged 17 to 45, both citizens and those who have declared their intent to become citizens, and of female citizens who are officers of the National Guard. It also specifies that the militia consists of two classes: the organized militia and the unorganized or reserve militia. Many states have similar statutes. Those citizens who apply, or are called up for service and are accepted by a state militia, are part of an organized militia. All others eligible under the law are members of the unorganized militia, and are subject to call up by the state.
Thus, while most citizens are members of the militia, and therefore have the right to keep and bear arms to respond to a call to assemble by lawful authority, the appointment of officers, and the training of militia members are the responsibility of the state. These militias that purport to support the Constitution, yet have appointed their own officers and conduct their own training without authority from the state, are therefore in apparent violation of Article 1, Section 8, Subsection 16 of the U.S. Constitution.
The Michigan Constitution provides in Article III, Section 4, that "The militia shall be organized, equipped and disciplined as provided by law." This "rump" organization has not been "organized, equipped and disciplined as provided by law." Instead private citizens, well-meaning though they may be, have organized, equipped and presumably disciplined themselves without any legal authority whatsoever.
Interesting enough, the state of Michigan, and a number of other states, already have organized militias other than the National Guard. In Michigan, this militia is known an the Michigan Emergency Volunteers. Other states call their organizations State Guards, State Military Reserves, State Militias or State Defense Forces. One wonders why this Michigan group doesn't simply join the authorized and organized Militia of Michigan.
Further evidence that states retain the power a govern and regulate militias can be found in American Jurisprudence: "...the state governments have the power to regulate or prohibit associations and meetings of the people .. and they also have the power to control and regulate the organization, drilling, and parading of military bodies and associations, except when such bodies or associations are authorized by the militia laws of the United States. The exercise of this power by the states is necessary to the public peace, safety, and good order. To deny the power would be to deny the right of the state to disperse assemblages organized for sedition and treason, and. the right to suppress armed mobs bent on riot and looting.
"Prohibiting any body of men, other than the regular organized militia and the regular troops of the United States, to associate themselves together as a military company or organization, or to drill or parade with arms without a proper license, is not violative of the federal Constitution."
In light of this guidance, states have enacted legislation regarding militia-type training. The California Penal Code Section 11460 states:
"(a) Any two or more persons who assemble as a paramilitary organization for the purpose of practicing with weapons shall be punished by imprisonment in the county jail for not more than one year or by a fine of not more than one thousand dollars ($1,000), or by both.
"As used in this subdivision, 'paramilitary organization' means an organization which is not an agency of the United States government or of the State of California, or which is not a private school meeting the requirements met forth in Section 12154 of the Education Code...
"(b)(I) Any person who teaches or demonstrates to any other person the use, application, or making of any firearms, explosive, or destructive device ... or any person who assembles with one or more persons. for the purpose of training with ... the use of any firearm ... with the intent to cause or further a civil disorder shall be punished..."
The Second Amendment should not be confused with the legality of citizens militias. The NRA, while supporting and defending the amendment, does not believe that the right to keep and bear arms is dependent upon membership in a militia, and has drafted this response:
"It is the NRA's view, based on law (Article 1, Section 8 of the U.S. Constitution; Title 10, U.S. Code, Section 311(a)), court precedents, and legal historical interpretation, that all able-bodied persons, explicitly those between the ages of 17 and 45, are members of the federal unorganized militia, except members of the organized state guards ... the National Guards of the various states (which also serve as a part of the National Guard of the United States, a military reserve subject to nationalization by the President of the United States), and certain government officials. An "organized citizen militia" must be created under the Constitution itself and/or the laws of a state.
"Title 10, U.S.C., clearly affirms the existence of the citizen militia; it is little changed since the original Militia Act of 1792 (except for the addition in this century of recognition of the third type of militia, the federally supported National Guard, in addition to the enrolled and unenrolled militia).
"Further, the individual right to own firearms is guaranteed by the Constitution, but the right to own firearms is not at all dependent upon the militia clause. The militia clause of the Second Amendment merely adds to the reason for the right, which is a common law right rooted in the right of protection of self, family, and community.
"The Second Amendment guarantees an individual's right to arms; participation in a citizen militia organization does not make that right more valid nor any stronger."
-- Wayne Anthony Ross
Critique of "Join a Militia -- Break the Law?"
By Jon Roland
It is unclear from the way the sidebar is presented whether the editors intended it to represent an opposing view to that of the main article. If so, then this intent should have been shown by some label such as "an opposing view". However, since it mainly discusses points of law, it is not opposed to the main article, which discusses events and personalities. Balance would require a discussion of opposing legal arguments. Since these are missing from this issue of the magazine, and since the legal points made in the sidebar are painfully unsound, I will herein present a legal brief on the subject which corrects some of the deficiencies of the sidebar.
One of the things missing from the magazine is information about the author, Wayne Anthony Ross, and his credentials to write such a legal analysis. My source states that he is a colonel in the Alaska State Defense Force, which is a select militia of the State of Alaska. I do not know if he has had any legal training, but his article indicates that if he has, he didn't master his lessons. Taken as a position statement, his sidebar seems to represent the legal doctrine on the subject that the Ruling Elite would like to establish. It is not clear that he has any authority to speak for the NRA, but if he has accurately stated their position, then that position is in error and needs to be changed.
First, Ross misquotes the Second Amendment. He substitutes the word "for" for the phrase "to the security of". This is indicated in the sidebar by surrounding the word "for" in brackets, but the editors should have made the correction. They got it right in the main article by Mike Williams. That Ross cannot quote the Constitution correctly, and the editors of the magazine can't catch it, is indicative of the quality of the reasoning elsewhere in the sidebar.
Second, Ross commits the non sequitur that reserving the training of militias and the training of their officers to the states, as provided in Article 1, Section 8, Para. 16, means delegating an exclusive power to the state governments. It is clear from the language and from historical analysis of the development of the Constitution that "reserving to the states" only meant the power was denied to the national government. For the Framers, the State was the "people of the state", not the "government of the state". When they wanted to indicate the government of a state, they used the language "Legislature of the State", as they do in Article 1, Section 8, Para. 17. It was left to the people of each state to decide what powers, if any, to delegate to their state governments for organizing and training militias and for the appointment of their officers. In the absence of such delegation of authority, the authority defaults to local communities under common law and established practice during the period in which the Constitution was adopted. That practice was for militias to be organized by county or township, usually under the authority of the highest elected law enforcement official, such as the sheriff or constable. However, any credible person could call up the militia, as Paul Revere did during his famous midnight ride.
Third, Ross makes the hidden and false assumption that a militia must be some large assembly of persons. Under the republican theory of government on which this nation was founded, the right of self-defense which we have in the state of nature, becomes transformed, when we enter into the Social Contract, into a duty to defend the community. When a solitary person defends himself against criminal attack, he is not, strictly speaking, defending himself. He is defending the community. It just happens that the member of the community he is defending is himself. When he does so, he is calling up the militia, even though the only militiaman he calls up is himself. If he asks any other person for aid in doing so, he is calling up the militia consisting of the two of them. And so forth for larger numbers of persons. There is no minimum size to the militia.
Fourth, Ross falsely claims that the 1903 Dick Act, which is encoded in 10 USC 311, did not substantially change the Militia Act of 1792, and that it is constitutionally valid in the definitions it advances. In fact, it repealed the Militia Act of 1792, which required all free white able-boded males age 18 to 45 to keep a weapon then considered suitable for militia duty, and which was amended in 1862 to include all males regardless of race. The Dick Act introduced a subtle change in word usage. That part of the total militia which were required to keep a weapon began to be treated as though it were the entire militia, although its language did suggest that they were the militia which was required to respond to a call up. The Dick Act also introduced the term "unorganized" for that portion of the militia not included in various select militias such as the National Guard, with the evident intention that they remain unorganized, which is clearly contrary to the intentions of the Framers. In 1933, the National Guard Act amended the Dick Act to establish the authority for raising the National Guard not on the "militia clause" but on the "army clause", thus making it a part of the regular armed forces, subject to being sent abroad, as the constitutional militia is not. What 10 USC 311 defines as the "unorganized" militia might more properly be called theobligatory militia, those who may be required to respond to a call up. That is clearly a subset of the entire militia, which includes all citizens and persons intending to become citizens, male or female, of whatever age, able-bodied or not.
A militiaman is simply any citizen in his capacity as a defender of the community, who is obliged to do so within his or her ability. Militiahood is a role which citizens may play as the situation requires it. It is not a permanent condition. But just as each citizen has a duty to defend the community, he also has the duty to prepare himself to play that role effectively, and to join with others in his community to train and to function as organized forces, and the elected officials of his community have the duty to facilitate that organization and training. If those officials fail in their duty, he must carry on without their participation.
Even though the Militia Act of 1792 has been repealed, by the logic of the Constitution, that part of the militia which is the obligatory militia still has the duty, and not just the right, to keep and bear arms suitable for militia duty. For all others, it is just a right and not a duty.
Ross asks why the persons who have become active in the Michigan Militia did not just join the Michigan Emergency Volunteers, the State Guard. The answer to that goes to the heart of the concept of the militia. State Guards are select militias, not true militias. To be a true militia, it must be open to all of the citizens in a community, normally the result of a general call up to an entire area, representative of the community as a whole, and not just a few persons chosen for compliance with some purpose of the authorities and subservient to their commands.
One of the main purposes for the militia is to serve as a counter to the government and any standing army it might maintain. The Framers intended that the militia should always be able to prevail over that combination, and over any select militias that might arise, if there were a confrontation between them. The role of the militia is to enforce the laws, beginning with the Constitution, especially in those situations where the lawbreakers are public officials themselves and the regular processes of law enforcement have failed to control official misconduct. That is precisely the situation in which we find ourselves today.
The quote from American Jurisprudence is another example of Establishment Doctrine that is ignorant or defiant of constitutional principles. People have the natural right, recognized in the First Amendment, to peaceably assemble, subject only to the property rights of the owner of the property on which the assembly takes place. Since they also have the right to keep and bear arms, and since any rights which may be exercised separately may be exercised in combination, then they have the natural right to assemble as a militia, bearing arms, and to organize and train, provided that they do not otherwise commit any offenses against innocent persons. States may have some authority to regulate the operations of select militias, but not to prohibit them on the grounds that they might commit some offense against an innocent person. Furthermore, if a militia musters in response to a public notice, it is a true militia, and has a special status under common and constitutional law, with the right to ignore private property rights when necessary to conduct military operations. Such a true militia takes on the character of a convention of the whole of the community, and as such is superior to all governmental authorities of that jurisdiction, with the power to replace officials and re-organize governmental institutions, subject to ratification by a general vote. In a republican form of government, direct democracy is not the norm, but the people may have to resort to it temporarily if republican institutions fail to serve them.
Citing California Penal Code Section 11460 is instructive. It is clearly unconstitutional, even under the California Constitution. The rights to assemble and to bear arms are unalienable natural rights, the infringement of which are prohibited by the First and Second Amendments to the U.S. Constitution, extended to the states by the Fourteenth Amendment. As written, it would seem to prohibit every kind of shooting club, range, or hunting club. In fact, it is one of those statutes never intended to be applied strictly, but at the discretion of law enforcement officials, against people they don't like. Such intentional selective enforcement itself makes the statute unconstitutional. To be constitutional, a statute must be intended to be uniformly applied, and actually applied uniformly, even if not always thoroughly.
The alleged NRA statement is obviously confused. For example, it states that members of state guards are not part of the federal "unorganized" militia, but under 10 USC 311, members of state guards are not recognized as being outside the "unorganized" militia. State guards are not mentioned in the statute. A state militia is indeed subject to state law and officers appointed by the state government, if it is called up by the Governor of the state, and if that call up is of the entire militia of an area and not just of a select part of it. Similarly, the militia is subject to local law and local officials if called up by them, provided that the call up is of the entire militia of the locality. That authority extends only to the duration of the emergency for which the call up was issued, and then only if the officials are acting in accordance with constitutional law. If they are violating their oaths of office, the militia has the duty to arrest them and elect new officers to act in their stead until a new election can be held to replace them.
Finally, Ross implicitly assumes throughout his sidebar that the Constitution or common law confers rights, and that people do not have a right unless it is granted them by the Constitution or common law, the doctrine that "everything that is not permitted is forbidden." Under our system of government, the people have all powers of government. They may pool those powers, and limit the zones within which they may freely exercise them, but they give up none of them. Government has only those powers granted to it by the people, which they may reassert whenever they determine that government has abused those powers, especially when that abuse includes the corruption of the courts and of elections, so that normal avenues of recourse are unavailable and a crisis of legitimacy prevails. This is the situation in which we now find ourselves, and it is that situation that drives the militia movement.
Ross does get one thing right. The right to keep and bear arms does not depend on the right to assemble as a militia. It is, however, an inseparable component of it, if the concept of the militia is properly understood, which is apparently not the case for many of the people who should be expected to understand it.
Critique of "... necessary to the security of a free State ..."
By Jon Roland
This article is, on the whole, a good one. There are only a few small matters that deserve comment. First, Williams mentions in the first paragraph that "there are citizens militia groups active in every state except Hawaii and Delaware." He apparently got that from a press release I put out in which I mentioned that I had "received inquiries from every state except Hawaii and Delaware" for information on organizing militias. That is old news. Since then I have found militias in both of those states, but there are still two states in which I have not had a reliable report of a militia being activated: New Jersey and Rhode Island. I would appreciate being put in touch with any militias that have formed or may form in those states, as well as in other states on which I have reports but have not yet established contact.
Actually, there is one single issue that has triggered this nationwide militia movement. It is the increasing violation of the U.S. Constitution and constitutional laws by federal and state officials. Activists may differ in the violations with which they are most concerned, but most of their concerns revolve around violations of some kind.
The sinking feeling that many activists have is not that federal judges are answerable to "no one", but that they are answerable to criminal special interests and corrupt officials, and not to the Constitution or to constitutional laws.
It should always be made clear that statutes, such as those of Oregon, California, and Idaho, are not laws. To be a law, a statute must be constitutional. Those statutes are not constitutional, and are therefore null and void from their inception. Citizens have the right and duty to ignore or resist such statutes, regardless of personal consequences.
Although it is doing some useful work, the United States Field Forces/National Militia is a select militia, a private association, not a true militia. Neither is the Texas Light Infantry, although they play a valuable role in helping to train county militia units in Texas. And the Texas Constitutional Militia, a unit of which I first activated in Bexar County on April 19, 1994, is not comprised of just those persons who are active in it. The term is only properly applied to the entire population of Texas, and only those units which meet in response to public notices can properly be called units of the TCM. Without public notices, those meeting can only properly be called "militia activist groups", perhaps playing an important leadership role, but not themselves the militia for their county or locality.
Finally, although Steve Brown deserves credit for serving as the commander of Unit 1 of the Bexar County Militia (there is at least one other unit), he may not have the resources to answer a flood of inquiries from all over the country about how to activate a local militia. Such inquiries might better be directed to the Texas Militia Correspondence Committee, 6900 San Pedro #147-230, San Antonio, TX 78216, 210/224-2868. We have an 80+ page package of materials which many activists say they have found useful, including some materials customized for each state and county, and we can put persons in touch with any local militia units in their area. We are soliciting additional materials to be included in this package, and welcome contributions which may be useful to organizers.
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http://www.constitution.org/col/sofonmil.htm
The sidebar is here recomposed for fax transmission, and because the author had an advance copy of it a month prior to publication, choosing not to react to it until after it was published in its final form, in case some of the defects might have been removed in editing. They weren't.
Join A Militia -- Break The Law?
Legal research on the subject of militias raises the question of their authority to organize. Article 1, Section 8 of the Constitution of the United States provides that: "The Congress shall have the power ... To provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions ... To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of officers, and the authority of training the militia according to the discipline prescribed by Congress."
The Second Amendment reads: "A well regulated militia being necessary [for] a free State, the right of the people to keep and bear arms shall not be infringed."
The Constitution, therefore, demonstrates that militias are a creature of the state, subject to being called forth by the U.S. government "to execute the laws of the Union..." This is bolstered by the wording of the Second Amendment which holds, "A well regulated militia being necessary [for] a Free State..." and by Article 1, Section 8, Subsection (16), which reserves to the states "the appointment of officers and the authority of training the militia..."
Title 10, U.S. Code, Section 311 further stipulates that the militia consists of all able-bodied males aged 17 to 45, both citizens and those who have declared their intent to become citizens, and of female citizens who are officers of the National Guard. It also specifies that the militia consists of two classes: the organized militia and the unorganized or reserve militia. Many states have similar statutes. Those citizens who apply, or are called up for service and are accepted by a state militia, are part of an organized militia. All others eligible under the law are members of the unorganized militia, and are subject to call up by the state.
Thus, while most citizens are members of the militia, and therefore have the right to keep and bear arms to respond to a call to assemble by lawful authority, the appointment of officers, and the training of militia members are the responsibility of the state. These militias that purport to support the Constitution, yet have appointed their own officers and conduct their own training without authority from the state, are therefore in apparent violation of Article 1, Section 8, Subsection 16 of the U.S. Constitution.
The Michigan Constitution provides in Article III, Section 4, that "The militia shall be organized, equipped and disciplined as provided by law." This "rump" organization has not been "organized, equipped and disciplined as provided by law." Instead private citizens, well-meaning though they may be, have organized, equipped and presumably disciplined themselves without any legal authority whatsoever.
Interesting enough, the state of Michigan, and a number of other states, already have organized militias other than the National Guard. In Michigan, this militia is known an the Michigan Emergency Volunteers. Other states call their organizations State Guards, State Military Reserves, State Militias or State Defense Forces. One wonders why this Michigan group doesn't simply join the authorized and organized Militia of Michigan.
Further evidence that states retain the power a govern and regulate militias can be found in American Jurisprudence: "...the state governments have the power to regulate or prohibit associations and meetings of the people .. and they also have the power to control and regulate the organization, drilling, and parading of military bodies and associations, except when such bodies or associations are authorized by the militia laws of the United States. The exercise of this power by the states is necessary to the public peace, safety, and good order. To deny the power would be to deny the right of the state to disperse assemblages organized for sedition and treason, and. the right to suppress armed mobs bent on riot and looting.
"Prohibiting any body of men, other than the regular organized militia and the regular troops of the United States, to associate themselves together as a military company or organization, or to drill or parade with arms without a proper license, is not violative of the federal Constitution."
In light of this guidance, states have enacted legislation regarding militia-type training. The California Penal Code Section 11460 states:
"(a) Any two or more persons who assemble as a paramilitary organization for the purpose of practicing with weapons shall be punished by imprisonment in the county jail for not more than one year or by a fine of not more than one thousand dollars ($1,000), or by both.
"As used in this subdivision, 'paramilitary organization' means an organization which is not an agency of the United States government or of the State of California, or which is not a private school meeting the requirements met forth in Section 12154 of the Education Code...
"(b)(I) Any person who teaches or demonstrates to any other person the use, application, or making of any firearms, explosive, or destructive device ... or any person who assembles with one or more persons. for the purpose of training with ... the use of any firearm ... with the intent to cause or further a civil disorder shall be punished..."
The Second Amendment should not be confused with the legality of citizens militias. The NRA, while supporting and defending the amendment, does not believe that the right to keep and bear arms is dependent upon membership in a militia, and has drafted this response:
"It is the NRA's view, based on law (Article 1, Section 8 of the U.S. Constitution; Title 10, U.S. Code, Section 311(a)), court precedents, and legal historical interpretation, that all able-bodied persons, explicitly those between the ages of 17 and 45, are members of the federal unorganized militia, except members of the organized state guards ... the National Guards of the various states (which also serve as a part of the National Guard of the United States, a military reserve subject to nationalization by the President of the United States), and certain government officials. An "organized citizen militia" must be created under the Constitution itself and/or the laws of a state.
"Title 10, U.S.C., clearly affirms the existence of the citizen militia; it is little changed since the original Militia Act of 1792 (except for the addition in this century of recognition of the third type of militia, the federally supported National Guard, in addition to the enrolled and unenrolled militia).
"Further, the individual right to own firearms is guaranteed by the Constitution, but the right to own firearms is not at all dependent upon the militia clause. The militia clause of the Second Amendment merely adds to the reason for the right, which is a common law right rooted in the right of protection of self, family, and community.
"The Second Amendment guarantees an individual's right to arms; participation in a citizen militia organization does not make that right more valid nor any stronger."
-- Wayne Anthony Ross
Critique of "Join a Militia -- Break the Law?"
By Jon Roland
It is unclear from the way the sidebar is presented whether the editors intended it to represent an opposing view to that of the main article. If so, then this intent should have been shown by some label such as "an opposing view". However, since it mainly discusses points of law, it is not opposed to the main article, which discusses events and personalities. Balance would require a discussion of opposing legal arguments. Since these are missing from this issue of the magazine, and since the legal points made in the sidebar are painfully unsound, I will herein present a legal brief on the subject which corrects some of the deficiencies of the sidebar.
One of the things missing from the magazine is information about the author, Wayne Anthony Ross, and his credentials to write such a legal analysis. My source states that he is a colonel in the Alaska State Defense Force, which is a select militia of the State of Alaska. I do not know if he has had any legal training, but his article indicates that if he has, he didn't master his lessons. Taken as a position statement, his sidebar seems to represent the legal doctrine on the subject that the Ruling Elite would like to establish. It is not clear that he has any authority to speak for the NRA, but if he has accurately stated their position, then that position is in error and needs to be changed.
First, Ross misquotes the Second Amendment. He substitutes the word "for" for the phrase "to the security of". This is indicated in the sidebar by surrounding the word "for" in brackets, but the editors should have made the correction. They got it right in the main article by Mike Williams. That Ross cannot quote the Constitution correctly, and the editors of the magazine can't catch it, is indicative of the quality of the reasoning elsewhere in the sidebar.
Second, Ross commits the non sequitur that reserving the training of militias and the training of their officers to the states, as provided in Article 1, Section 8, Para. 16, means delegating an exclusive power to the state governments. It is clear from the language and from historical analysis of the development of the Constitution that "reserving to the states" only meant the power was denied to the national government. For the Framers, the State was the "people of the state", not the "government of the state". When they wanted to indicate the government of a state, they used the language "Legislature of the State", as they do in Article 1, Section 8, Para. 17. It was left to the people of each state to decide what powers, if any, to delegate to their state governments for organizing and training militias and for the appointment of their officers. In the absence of such delegation of authority, the authority defaults to local communities under common law and established practice during the period in which the Constitution was adopted. That practice was for militias to be organized by county or township, usually under the authority of the highest elected law enforcement official, such as the sheriff or constable. However, any credible person could call up the militia, as Paul Revere did during his famous midnight ride.
Third, Ross makes the hidden and false assumption that a militia must be some large assembly of persons. Under the republican theory of government on which this nation was founded, the right of self-defense which we have in the state of nature, becomes transformed, when we enter into the Social Contract, into a duty to defend the community. When a solitary person defends himself against criminal attack, he is not, strictly speaking, defending himself. He is defending the community. It just happens that the member of the community he is defending is himself. When he does so, he is calling up the militia, even though the only militiaman he calls up is himself. If he asks any other person for aid in doing so, he is calling up the militia consisting of the two of them. And so forth for larger numbers of persons. There is no minimum size to the militia.
Fourth, Ross falsely claims that the 1903 Dick Act, which is encoded in 10 USC 311, did not substantially change the Militia Act of 1792, and that it is constitutionally valid in the definitions it advances. In fact, it repealed the Militia Act of 1792, which required all free white able-boded males age 18 to 45 to keep a weapon then considered suitable for militia duty, and which was amended in 1862 to include all males regardless of race. The Dick Act introduced a subtle change in word usage. That part of the total militia which were required to keep a weapon began to be treated as though it were the entire militia, although its language did suggest that they were the militia which was required to respond to a call up. The Dick Act also introduced the term "unorganized" for that portion of the militia not included in various select militias such as the National Guard, with the evident intention that they remain unorganized, which is clearly contrary to the intentions of the Framers. In 1933, the National Guard Act amended the Dick Act to establish the authority for raising the National Guard not on the "militia clause" but on the "army clause", thus making it a part of the regular armed forces, subject to being sent abroad, as the constitutional militia is not. What 10 USC 311 defines as the "unorganized" militia might more properly be called theobligatory militia, those who may be required to respond to a call up. That is clearly a subset of the entire militia, which includes all citizens and persons intending to become citizens, male or female, of whatever age, able-bodied or not.
A militiaman is simply any citizen in his capacity as a defender of the community, who is obliged to do so within his or her ability. Militiahood is a role which citizens may play as the situation requires it. It is not a permanent condition. But just as each citizen has a duty to defend the community, he also has the duty to prepare himself to play that role effectively, and to join with others in his community to train and to function as organized forces, and the elected officials of his community have the duty to facilitate that organization and training. If those officials fail in their duty, he must carry on without their participation.
Even though the Militia Act of 1792 has been repealed, by the logic of the Constitution, that part of the militia which is the obligatory militia still has the duty, and not just the right, to keep and bear arms suitable for militia duty. For all others, it is just a right and not a duty.
Ross asks why the persons who have become active in the Michigan Militia did not just join the Michigan Emergency Volunteers, the State Guard. The answer to that goes to the heart of the concept of the militia. State Guards are select militias, not true militias. To be a true militia, it must be open to all of the citizens in a community, normally the result of a general call up to an entire area, representative of the community as a whole, and not just a few persons chosen for compliance with some purpose of the authorities and subservient to their commands.
One of the main purposes for the militia is to serve as a counter to the government and any standing army it might maintain. The Framers intended that the militia should always be able to prevail over that combination, and over any select militias that might arise, if there were a confrontation between them. The role of the militia is to enforce the laws, beginning with the Constitution, especially in those situations where the lawbreakers are public officials themselves and the regular processes of law enforcement have failed to control official misconduct. That is precisely the situation in which we find ourselves today.
The quote from American Jurisprudence is another example of Establishment Doctrine that is ignorant or defiant of constitutional principles. People have the natural right, recognized in the First Amendment, to peaceably assemble, subject only to the property rights of the owner of the property on which the assembly takes place. Since they also have the right to keep and bear arms, and since any rights which may be exercised separately may be exercised in combination, then they have the natural right to assemble as a militia, bearing arms, and to organize and train, provided that they do not otherwise commit any offenses against innocent persons. States may have some authority to regulate the operations of select militias, but not to prohibit them on the grounds that they might commit some offense against an innocent person. Furthermore, if a militia musters in response to a public notice, it is a true militia, and has a special status under common and constitutional law, with the right to ignore private property rights when necessary to conduct military operations. Such a true militia takes on the character of a convention of the whole of the community, and as such is superior to all governmental authorities of that jurisdiction, with the power to replace officials and re-organize governmental institutions, subject to ratification by a general vote. In a republican form of government, direct democracy is not the norm, but the people may have to resort to it temporarily if republican institutions fail to serve them.
Citing California Penal Code Section 11460 is instructive. It is clearly unconstitutional, even under the California Constitution. The rights to assemble and to bear arms are unalienable natural rights, the infringement of which are prohibited by the First and Second Amendments to the U.S. Constitution, extended to the states by the Fourteenth Amendment. As written, it would seem to prohibit every kind of shooting club, range, or hunting club. In fact, it is one of those statutes never intended to be applied strictly, but at the discretion of law enforcement officials, against people they don't like. Such intentional selective enforcement itself makes the statute unconstitutional. To be constitutional, a statute must be intended to be uniformly applied, and actually applied uniformly, even if not always thoroughly.
The alleged NRA statement is obviously confused. For example, it states that members of state guards are not part of the federal "unorganized" militia, but under 10 USC 311, members of state guards are not recognized as being outside the "unorganized" militia. State guards are not mentioned in the statute. A state militia is indeed subject to state law and officers appointed by the state government, if it is called up by the Governor of the state, and if that call up is of the entire militia of an area and not just of a select part of it. Similarly, the militia is subject to local law and local officials if called up by them, provided that the call up is of the entire militia of the locality. That authority extends only to the duration of the emergency for which the call up was issued, and then only if the officials are acting in accordance with constitutional law. If they are violating their oaths of office, the militia has the duty to arrest them and elect new officers to act in their stead until a new election can be held to replace them.
Finally, Ross implicitly assumes throughout his sidebar that the Constitution or common law confers rights, and that people do not have a right unless it is granted them by the Constitution or common law, the doctrine that "everything that is not permitted is forbidden." Under our system of government, the people have all powers of government. They may pool those powers, and limit the zones within which they may freely exercise them, but they give up none of them. Government has only those powers granted to it by the people, which they may reassert whenever they determine that government has abused those powers, especially when that abuse includes the corruption of the courts and of elections, so that normal avenues of recourse are unavailable and a crisis of legitimacy prevails. This is the situation in which we now find ourselves, and it is that situation that drives the militia movement.
Ross does get one thing right. The right to keep and bear arms does not depend on the right to assemble as a militia. It is, however, an inseparable component of it, if the concept of the militia is properly understood, which is apparently not the case for many of the people who should be expected to understand it.
Critique of "... necessary to the security of a free State ..."
By Jon Roland
This article is, on the whole, a good one. There are only a few small matters that deserve comment. First, Williams mentions in the first paragraph that "there are citizens militia groups active in every state except Hawaii and Delaware." He apparently got that from a press release I put out in which I mentioned that I had "received inquiries from every state except Hawaii and Delaware" for information on organizing militias. That is old news. Since then I have found militias in both of those states, but there are still two states in which I have not had a reliable report of a militia being activated: New Jersey and Rhode Island. I would appreciate being put in touch with any militias that have formed or may form in those states, as well as in other states on which I have reports but have not yet established contact.
Actually, there is one single issue that has triggered this nationwide militia movement. It is the increasing violation of the U.S. Constitution and constitutional laws by federal and state officials. Activists may differ in the violations with which they are most concerned, but most of their concerns revolve around violations of some kind.
The sinking feeling that many activists have is not that federal judges are answerable to "no one", but that they are answerable to criminal special interests and corrupt officials, and not to the Constitution or to constitutional laws.
It should always be made clear that statutes, such as those of Oregon, California, and Idaho, are not laws. To be a law, a statute must be constitutional. Those statutes are not constitutional, and are therefore null and void from their inception. Citizens have the right and duty to ignore or resist such statutes, regardless of personal consequences.
Although it is doing some useful work, the United States Field Forces/National Militia is a select militia, a private association, not a true militia. Neither is the Texas Light Infantry, although they play a valuable role in helping to train county militia units in Texas. And the Texas Constitutional Militia, a unit of which I first activated in Bexar County on April 19, 1994, is not comprised of just those persons who are active in it. The term is only properly applied to the entire population of Texas, and only those units which meet in response to public notices can properly be called units of the TCM. Without public notices, those meeting can only properly be called "militia activist groups", perhaps playing an important leadership role, but not themselves the militia for their county or locality.
Finally, although Steve Brown deserves credit for serving as the commander of Unit 1 of the Bexar County Militia (there is at least one other unit), he may not have the resources to answer a flood of inquiries from all over the country about how to activate a local militia. Such inquiries might better be directed to the Texas Militia Correspondence Committee, 6900 San Pedro #147-230, San Antonio, TX 78216, 210/224-2868. We have an 80+ page package of materials which many activists say they have found useful, including some materials customized for each state and county, and we can put persons in touch with any local militia units in their area. We are soliciting additional materials to be included in this package, and welcome contributions which may be useful to organizers.
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http://www.constitution.org/col/sofonmil.htm
Thursday, July 4, 2013
Common Law Grand Jury
Reactivating the Common Law Grand Jury
A Brief Strategy Suggestion
BACKGROUND
When the colonies separated from England, King John retaliated by revoking the charters. Technically, the colonies were without any legal authority to operate. However, civics (the branch of political philosophy concerned with individual rights) was generally taught and known by the people who asserted their rights and maintained order by applying the common law. The people united in the form of common law grand juries and continued the functioning of government.
As the legislatures matured they slowly increased governmental power while simultaneously reducing personal sovereign power. This was done through a combination of passing pro-government legislation and reducing or eliminating education about civics. Today, two and a quarter centuries later, hardly anyone even knows the meaning of the word, "civics."
Despite the fact that the state and federal constitutions still acknowledge the common law as the ultimate law system, people everywhere are conditioned to believe that the statutory law and codes are the only source of law. The only remaining common law term generally known among the public is "common law marriage."
The common law grand jury is now dormant only because of the public ignorance of its powers that supercede all other government entities, including the modern statutorily defined grand jury. Awakening the grand jury will not be graciously accepted by the government. A strategy is needed to reintroduce this fundamental protection against tyranny and injustice.
STEP 1 - ESTABLISH LEGITIMACY
The first step is to get public acceptance. Every dictator in history understood the power of the people and cultivated their support either through enticements or threats. Reactivating the grand jury concept will go through four traditional stages: denial, ridicule, violent opposition, then self-evident acceptance.
Theoretically, the grand jury can meet anywhere, anytime. But that is hardly good image. One way to get public acceptance and minimize denial, ridicule, and violent opposition, is to hold the grand jury sessions in the public court house. The foreman could apply to a court administrator for use of one of the rooms in the public courthouse. If it is refused, then the court administrator should, under common law procedures, be sued for his dereliction of duty.
The grand jury should follow normal protocol. In other words, if the grand jury begins a process on its own, the resulting accusation is called a presentment. If a prosecutor orginates a process, then the jury returns to the prosecutor an indictment (also called a "true bill") on acceptance, or a "no bill" on denial. [Note: be careful with your words. wrong words may result in inaction! If you call the presentment an indictment, the prosecutor may feel no obligation because he did not initiate the process!]
STEP 2 - GAIN PUBLIC ACCEPTANCE
The second step is to start small. The grand jury could take on issues which anyone can easily see should be prosecuted. As public acceptance increases, the grand jury can enlarge its field of inquiry. The grand jury should have a strong public relations program for this step.
STEP 3 - TAKE ON LARGER PROJECTS
The third step is to take on grander objectives. If the first two steps are well executed, then this step will be the easiest. With both legitimacy and acceptance established the grand jury can make itself felt.
See United States v. Williams, 112 S.Ct. 1735, 504 U.S. 36, 118 L.Ed.2d 352 (1992) for a discussion of separation of powers of government and grand jury.
http://www.1215.org/lawnotes/lawnotes/grandjuryrules.htm
Magna Carta
+52. If anyone shall have been disseized by us, or removed, without a legal sentence of his peers, from his lands, castles, liberties or lawful right, we shall straightway restore them to him. And if a dispute shall arise concerning this matter it shall be settled according to the judgment of the twenty-five barons who are mentioned below as sureties for the peace. But with regard to all those things of which any one was, by king Henry our father or king Richard our brother, disseized or dispossessed without legal judgement of his peers, which we have in our hand or which others hold, and for which we ought to give a guarantee: We shall have respite until the common term for crusaders. Except with regard to those concerning which a plea was moved, or an inquest made by our order, before we took the cross. But when we return from our pilgrimage, or if, by chance, we desist from our pilgrimage, we shall straightway then show full justice regarding them.
+61. Inasmuch as for the sake of God, and for the bettering of our realm, and for the more ready healing of the discord which has arisen between us and our barons, we have made all these aforesaid concessions,--wishing them to enjoy for ever entire and firm stability, we make and grant to them the following security: that the barons, namely, may elect at their pleasure twenty five barons from the realm, who ought, with all their strength, to observe, maintain and cause to be observed, the peace and privileges which we have granted to them and confirmed by this our present charter. In such wise, namely, that if we, our justice, or our bailiffs, or any one of our servants shall have transgressed against any one in any respect, or shall have broken some one of the articles of peace or security, and our transgression shall have been shown to four barons of the aforesaid twenty five: those four barons shall come to us, or, if we are abroad, to our justice, showing to us our error; and they shall ask us to cause that error to be amended without delay. And if we do not amend that error, or, we being abroad, if our justice do not amend it within a term of forty days from the time when it was shown to us or, we being abroad, to our justice: the aforesaid four barons shall refer the matter to the remainder of the twenty five barons, and those twenty five barons, with the whole land in common, shall distrain and oppress us in every way in their power,--namely, by taking our castles, lands and possessions, and in every other way that they can, until amends shall have been made according to their judgment. Saving the persons of ourselves, our queen and our children. And when amends shall have been made they shall be in accord with us as they had been previously. And whoever of the land wishes to do so, shall swear that in carrying out all the aforesaid measures he will obey the mandates of the aforesaid twenty five barons, and that, with them, he will oppress us to the extent of his power. And, to any one who wishes to do so, we publicly and freely give permission to swear; and we will never prevent any one from swearing. Moreover, all those in the land who shall be unwilling, themselves and of their own accord, to swear to the twenty five barons as to distraining and oppressing us with them: such ones we shall make to swear by our mandate, as has been said. And if any one of the twenty five barons shall die, or leave the country, or in any other way be prevented from carrying out the aforesaid measures,--the remainder of the aforesaid twenty five barons shall choose another in his place, according to their judgment, who shall be sworn in the same way as the others. Moreover, in all things entrusted to those twenty five barons to be carried out, if those twenty five shall be present and chance to disagree among themselves with regard to some matter, or if some of them, having been summoned, shall be unwilling or unable to be present: that which the majority of those present shall decide or decree shall be considered binding and valid, just as if all the twenty five had consented to it. And the aforesaid twenty five shall swear that they will faithfully observe all the foregoing, and will cause them to be observed to the extent of their power. And we shall obtain nothing from any one, either through ourselves or through another, by which any of those concessions and liberties may be revoked or diminished. And if any such thing shall have been obtained, it shall be vain and invalid, and we shall never make use of it either through ourselves or through another.
http://www.1215.org/lawnotes/lawnotes/magna.htm#61
CREIGHTON LAW REVIEW, Vol. 33, No. 4 1999-2000, 821
SCHOOL OF LAW
CREIGHTON UNIVERSITY
OMAHA, NEBRASKA
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IF IT'S NOT A RUNAWAY, IT'S NOT A REAL GRAND JURY
ROGER ROOTS†
I. INTRODUCTION
The doings of American grand juries are notoriously misunderstood and unknown by most sectors of the public.[1] Generally, the grand jury process escapes obscurity only when indictments are made public and when, for whatever reason, grand jury "leaks" are disclosed in the news media.[2] In theory, the grand jury is supposed to act as a check on the government — a people's watchdog against arbitrary and malevolent prosecutions.[3] 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.[4] The Framers of the Bill of Rights would scarcely recognize a grand jury upon seeing the modern version conduct business in a federal courthouse.[5] In modern federal grand jury proceedings, the government attorney is clearly in charge and government agents may outnumber the witnesses by six-to-one.[6]
A "runaway" grand jury, loosely defined as a grand jury which resists the accusatory choices of a government prosecutor, has been virtually eliminated by modern criminal procedure. Today's "runaway" grand jury is in fact the common law grand jury of the past. Prior to the emergence of governmental prosecution as the standard model of American criminal justice, all grand juries were in fact "runaways," according to the definition of modern times; they operated as completely independent, self-directing bodies of inquisitors, with power to pursue unlawful conduct to its very source, including the government itself.[7]
Before the Federal Rules of Criminal Procedure — which made independently-acting grand juries illegal for all practical purposes — grand juries were understood to have broad powers to operate at direct odds with both judges and prosecutors.[8] One recent criminal procedure treatise sums up the inherent inconsistency of the modern grand jury regime:
In theory, the grand jury is a body of independent citizens that can investigate any crime or government misdeed that comes to its attention. In practice, however, the grand jury is dependent upon the prosecutor to bring cases and gather evidence. Except in rare instances of a "runaway" grand jury investigation of issues that a prosecutor does not want investigated, the powers of the grand jury enhance the powers of the prosecutor.[9]
Thus, while the grand jury still exists as an institution — in a sterile, watered-down, and impotent form — its decisions are the mere reflection of the United States Justice Department.[10] In practice, the grand jury's every move is controlled by the prosecution, whom the grand jury simply does not know it is supposed to be pitted against.[11]
The term "runaway grand jury" did not appear in legal literature until the mid-twentieth century.[12] The reason for this is that the term would have been inapplicable in the context of previous generations: every American grand jury known by the Constitution's Framers would be considered a runaway grand jury under modern criminal procedure. Constitutional framers knew criminal law to be driven by private prosecution and did not contemplate the omnipresence of government prosecutors.[13] Additionally, early American common law placed far more power and investigative judgment in the hands of grand juries than does the criminal procedure of the twentieth century.
Although in 1946 the drafters of the Federal Rules of Criminal Procedure looked with horror at the prospect of grand juries that "could act from their own knowledge or observation,"[14] long-standing common law precedent upholds the power of grand juries to act "independently of either the prosecuting attorney or judge."[15] At common law, a grand jury could freely "investigate merely on [the] suspicion that the law [was] being violated, or even because it want[ed] assurance that it [was] not."[16] In light of the historic independence of the grand jury, the perfidy of the Federal Rules Advisory Committee in limiting the institution through codification can only be seen as willful subversion of well-settled law.[17] 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.
The loss of the grand jury in its traditional, authentic, or runaway form, leaves the modern federal government with few natural enemies capable of delivering any sort of damaging blows against it.[18] The importance of this loss of a once powerful check on the "runaway" federal government is a focus that has remained largely untouched in the legal literature.
This article examines the historic decrease in the powers of the American grand jury during the twentieth century. It introduces the subject of the grand jury in the context of the constitutional language which invoked it, and then compares the modern application of the institution at the federal level with its common law model.[19] Tracing the historic evolution of the grand jury as an anti-government institution in the English common law until its "capture" by the government in the mid-twentieth century, this article will demonstrate how the role of the grand jury has changed considerably over time. Finally, this article will argue that the modern loss of "runaway" or independent grand juries is unconstitutional and recommend a restoration of the grand jury's historic powers.
II. THE GRAND JURY'S HISTORIC FUNCTION
The Fifth Amendment to the United States Constitution requires that "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury."[20] Constitutional framers considered this protection "a bulwark against oppression" due to the grand jury's historic powers to investigate the government and deny government indictments.[21] The grand jury of the eighteenth century usually consisted of twenty-three people acting in secret who were able to charge both on their own (an accusation known as a "presentment") and upon the recommendations of a prosecutor.[22] In addition to its traditional role of screening criminal cases for prosecution, common law grand juries had the power to exclude prosecutors from their presence at any time and to investigate public officials without governmental influence.[23] These fundamental powers allowed grand juries to serve a vital function of oversight upon the government.[24] The function of a grand jury to ferret out government corruption was the primary purpose of the grand jury system in ages past.[25]
THE MODERN GRAND JURY IN COMPARISON
Today's federal grand jury hardly fits the image of a noble and independent body.[26] As a practical matter, it is little more than an audience for summary government presentations.[27] Grand juries in federal courthouses do little more than listen to "a recitation of charges by a government witness."[28] Federal prosecutors, unchecked by a grand jury in its modern misconstruction, can easily obtain whatever result they seek in the grand jury room.[29] They generally call only one witness, a federal agent who summarizes, in hearsay form, what other witnesses (if any) told her.[30] Eyewitnesses, even if available, rarely appear, and the entire presentation of the prosecutor's case may take as few as three minutes.[31]
Even the federal grand jury handbook issued to newly sworn grand jurors reflects the watered down nature of modern grand jury activities.[32] The 1979 version of the handbook assured jurors that "you alone decide how many witnesses" are to appear.[33] Five years later, the updated version of the handbook told jurors "that the United States Attorney would 'advise them on what witnesses' should be called."[34]
"Today, the grand jury is the total captive of the prosecutor," wrote one Illinois district judge, "who, if he is candid, will concede that he can indict anybody, at any time, for almost anything, before any grand jury."[35] Supreme Court Justice William Douglas wrote in 1973 that it was "common knowledge that the grand jury, having been conceived as a bulwark between the citizen and the Government, is now a tool of the Executive."[36] At least one scholar has suggested that the problem of grand jury subordination may be so institutionalized that its very structure violates due process.[37] The critics are unanimous in their condemnation of the modern grand jury process as little more than an elaborate ritual used only to justify by ceremony the decisions of the government. Commentators only disagree on whether to term the grand jury the prosecutors; "indictment mill," "rubber stamp," a "tool" or "playtoy."[38]
STATISTICAL PROOF
According to David Burnham of the Transactional Records Access Clearinghouse ("TRAC"), the statistical evidence "overwhelmingly supports what practicing lawyers have known in an anecdotal way for many years: One of the basic safeguards promised by the Fifth Amendment is a fraud."[39] Describing traditional expressions by federal judges concerning the grand jury as those of "almost mystical faith" — with little basis in reality, Burnham speaks of scores of decisions in which courts have found that Justice Department lawyers lied, cheated, or took other improper actions to win their indictments and convictions, but which courts found did not serve to overpower the grand jury's alleged independence.[40] "The grand jury as an institution is worshipped for being something it is not," according to Burn-ham, "a group of citizens capable of confronting an assistant U.S. Attorney over matters of the law or sufficiency of evidence."[41] Another writer has described grand jury subpoenas and indictments as "essentially unilateral decisions by prosecutors."[42]
According to TRAC, of 785 federal grand juries in 1991, grand jurors voted against the prosecutor in only sixteen of the 25,943 matters presented to them, a rate of 99.9% agreement.[43] Even the remaining one tenth of one percent, according to Burnham, might exaggerate a grand jury's independence, due to prosecutors deliberately "throwing" a couple of prosecutions, such as the possibly disingenuous 1991 "investigation" of Virginia Senator Charles Robb on widespread allegations of illegal tape recording of a political rival.[44]
Even the Justice Department has tacitly conceded that there is almost no such thing as grand jury independence. A 1983 report by its Office of Development, Testing and Dissemination concluded that the imbalance of power between the courts and prosecutors on one hand and the grand jury on the other "makes grand jury effectiveness largely dependent on the good will and ethics of the courts and prosecutors."[45] The Justice Department report shrugged off this criticism, however, asserting that prosecutors have little incentive for promoting unsound indictments since they have the burden of preparing for trial. "Indeed," claimed the report, "the incidence of guilty pleas and verdicts following indictment may be seen as evidence of the ultimate effectiveness of the grand jury process."[46]
Despite this self-serving confidence by the government, the vast majority of disinterested observers view grand jury effectiveness as completely subject to the direction of federal prosecutors. As one scholar put it, "[t]he notion that grand juries do not eliminate weak cases is now so well accepted that it is difficult to find any recent scholarly support to the contrary."[47]
But while critics of the grand jury process are many, few point to any clearly articulable reasons to explain why the grand juries of the past were so much better at resisting the will of the prosecutor than those of today.[48] Some authorities place the blame on federal prosecutors and argue that Congress should expressly prohibit them from misleading grand juries by withholding exculpatory information or from using illegally seized information to gain grand jury indictments.[49] Others point to the modern grand jury's lack of investigative tools and call upon Congress to provide grand juries with their own investigative staff and resources.[50] Other sources, such as the American Bar Association, have pointed to modern grand jury instructions as a major source of grand jury subordination, and argue that instructions should be altered to emphasize to grand jurors their independence and their co-equal status in relation to the government.[51 ]Other authorities have placed the blame squarely upon the Federal Rules of Criminal Procedure, which provide no clear avenue for the exercise of traditional grand jury powers.
III. ORIGINS
The grand jury is first known to have existed in 1166, when the Norman kings of England required answers from local representatives concerning royal property rights.[52] In its early centuries, the grand jury evolved into a body of twelve men who presented indictments at the behest of private individuals or the prosecutor of the King.[53] The Magna Carta provided that individuals had the right to go before a grand jury to be charged of their crimes.[54] As trial by a jury of twelve replaced trial by ordeal, the grand jury became a body of twelve to twenty-three men, which is closer to the way it is set up today, acting as ombudsmen between the King's officials and royal subjects.[55]
SECRECY ADOPTED IN 1681
By 1681, the English grand jury adopted the rule of secrecy which allowed it to function out of the sight of the King's prosecutors or other intemeddlers. It was secrecy that provided the grand jury with its greatest power as an independent populist body, equipped with an oversight power on the government. Thus was born the grand jury in its primal, plenary sense. It was a group of men who stood as a check on government, often in direct opposition to the desires of those in power. Eulogized by Coke and Blackstone, the grand jury crossed the Atlantic as one of the fundamental foundations of common law in the American colonies.[56]
The development of grand juries in America was similar to that of England, with a few exceptions. The English colonies in America were crucibles for popular anti-monarchical ideology. The grand jury was the initiator of prosecutions, acting "in several of the colonies as spokesmen for the people . . . and [as] vehicles for complaints against officialdom."[57] Indeed, in America, the grand jury originally began as a defense against the monarchy, and was arguably even more independent than the English grand jury of the 1600s.[58] American grand juries initiated prosecutions against corrupt agents of the government, often in response to complaints from individuals.[59]
Crossing the Atlantic Ocean with the first English colonists, the notion of the grand jury as an indispensable arm of law enforcement became entrenched. Grand juries in their "runaway" sense were a bedrock foundation of the English common law that was inherited by the American justice system.[60] Grand jurors in New Plymouth colony were charged "to serve the King by inquiring into the abuses and breaches of such wholesome laws and ordinances as tend to the preservation of the peace and good of the subject."[61] In early Connecticut, grand jurors were specifically mandated to report any breaches of the laws they knew of in their jurisdiction.[62] In Massachusetts, grand jurors had to appear at least once yearly before their county courts to disclose "all misdemeanors they shall know or hear to be committed by any person."[63] These grand jurors had a duty to report offenses in their communities that came to their attention, to personally investigate suspected wrongdoing, and to question anyone whose behavior seemed suspicious.[64]
In the early American experience, the grand jury became more a part of local government than it had apparently ever been in England. A grand jury in Virginia in 1662 was part of the country system, which meant that they would meet two times a year "to levy taxes and oversee spending, supervise public works, appoint local officials, and consider criminal accusations."[65] Connecticut grand juries were levying taxes and conducting local government work by the middle of the 1700s.[66] A similar active role in local government was assumed by grand juries in the Carolinas, Georgia, Maryland, New Jersey, and Pennsylvania, all of which had sufficient independence to publicly announce dissatisfaction with government.[67]
The grand jury that the drafters of the Bill of Rights knew was no doubt more powerful than any known in England. Indeed, the actions of grand juries figured prominently in the beginnings of the Revolution. In 1765, a Boston grand jury refused to indict Colonists who had led riots against the Stamp Act.[68] Four years later, as tensions intensified, a Boston grand jury indicted some British soldiers located within the city boundaries for alleged crimes against the colonists, but refused to treat certain colonists who had been charged by the British authorities for inciting desertion in a like manner.[69] A Philadelphia grand jury condemned the use of the tea tax to compensate the British officials, encouraged a rejection of all British goods, and called for organization with other colonies to demand redress of grievances.[70]
Contrary to the modern situation where secrecy is court imposed and aimed at aiding the prosecutor in gaining an indictment, these grand juries embraced secrecy as an inherent power of their own, independent of any other governmental institutions. Indeed, colonial grand juries became sounding boards for anti-British sentiment. They functioned as patriotic platforms and propaganda machines, constantly condemning the British government and encouraging individuals to support the effort of independence.[71] "In some instances," according to commentators, "the calls to arms were sounded by the grand jurors themselves; in others, the sparks came from patriotic oratory by the presiding judges in their charges to the grand jury."[72 ]The public proclamations of these grand juries were drastically different from anything we know today; they were often circulated in local and national newspapers in an effort to "fuel the revolutionary fire."[73 ]The process for receiving private testimony, outside the presence of the court officials, remained a common practice for a century after the grand jury was enshrined in the Bill of Rights.[74] Throughout the 19th century, grand juries often acted on their own initiative in the face of opposition from a district attorney. It was just such a grand jury that probed and "toppled the notorious Boss Tweed and his cronies" in New York City in 1872. Without the prosecutor's assistance, the Tweed grand jury independently carried out its own investigation in a district that had otherwise been very loyal to Tweed.[75]
In 1902, a Minneapolis grand jury on its own initiative hired private detectives and collected enough evidence to indict the mayor and force the police chief to resign.[76] This same grand jury virtually governed the city until a new administration could be hired. Similar events occurred in San Francisco five years later, when a grand jury indicted the mayor and replaced him.[77]
But beginning about 1910 or so, the grand jury ceased to operate so independently. As the government began to regulate the grand jury more and more, the grand jury became "captured." The practice of allowing a prosecutor to investigate crime allegations and then present his evidence for indictment before the grand jury became routine and evolved into such standard practice that by the end of the nineteenth century it had become a part of "normal" grand jury operations. While previously the prosecutor often did not get a case until after indictment, now he was frequently allowed to present evidence before the grand jury personally. By the turn of the twentieth century, according to one commentator, "with the prosecutor inside the grand jury room, the purposes of grand jury secrecy were no longer apparent."[78]
As the grand jury slowly lost its full historic purpose, grand juries became resigned to a minute corner of the American justice system. American grand juries ceased to initiate their own investigations. "Dramatic, sometimes violent confrontations between grand juries and prosecutors, politicians, legislatures, even within the grand juries themselves, became largely things of the past by about the 1930's."[79]
During this period of the grand jury's slow decline in the states, federal grand juries became, ironically, more important. Although federal grand juries had been a rather obscure element of American criminal procedure before the twentieth century, they stood poised to explode in importance due to the increase of federal criminal jurisdiction by the turn of the century.[80] The growing importance of federal grand juries came at the precise historic moment when state models for grand juries were becoming more and more limited. In fact, because federal grand jury practice looked by necessity to state grand juries as models for federal procedure, the resulting model for federal grand jury proceedings was actually a mere shell of the model intended by the Framers.[81]
From the ratification of the Bill of Rights in 1789, up until and to some extent beyond its codification in the Federal Rules of Criminal Procedure, a Federal grand jury practice went for the most part unregulated by statute.[82] This was due to the limited constitutional jurisdiction of the federal government, and to the scarcity of federal statutes governing criminal justice, a domain traditionally reserved to the states.[83] In its traditional form, the citizen grand jury had come to be seen as an inefficient, unnecessary and possibly dangerous phenomenon.[84] Ultimately, a combination of judicial activism, executive contempt and legislative apathy left the federal grand jury weakened and contained before it had a chance to truly roam free.[85]
1946 ENACTMENT OF THE FEDERAL RULES
In 1946, the Federal Rules of Criminal Procedure were adopted, codifying what had previously been a vastly divergent set of common law procedural rules and regional customs.[86] In general, an effort was made to conform the rules to the contemporary state of federal criminal practice.[87] In the area of federal grand jury practice, however, a remarkable exception was allowed. The drafters of Rules 6 and 7, which loosely govern federal grand juries, denied future generations of what had been the well-recognized powers of common law grand juries: powers of unrestrained investigation and of independent declaration of findings. The committee that drafted the Federal Rules of Criminal Procedure provided no outlet for any document other than a prosecutor-signed indictment. In so doing, the drafters at least tacitly, if not affirmatively, opted to ignore explicit constitutional language.[88]
IV. THE LOST PRESENTMENT POWER OF THE GRAND JURY
The Fifth Amendment to the United States Constitution requires that no person shall be held to answer for a capital or otherwise infamous crime except by a presentment or indictment of a grand jury.[89]
What all authorities recognize as a "presentment," however, has been written out of the law and is no longer recognized by the federal judiciary.[90]
A presentment is a grand jury communication to the public concerning the grand jury's investigation. It has traditionally been an avenue for expressing grievances of the people against government.[91 ] In early American common law, the presentment was a customary way for grand juries to accuse public employees or officials of misconduct.[92] While an "indictment" was normally thought to be invalid without the signature of a government prosecutor, a presentment required no formal assent of any entity outside the grand jury. In early America, a presentment was thought to be an indictment without a prosecutor's signature and a mandate to a district attorney to initiate a prosecution.[93]
According to Professor Lester B. Orfield, who served as a member of the Advisory Committee on Rules of Criminal Procedure, the drafters of Rule 6 consciously decided that the term "presentment" should not be used in the Rules — even though the term appears in the Constitution.[94] "Retention," wrote Orfield, "might encourage the use of the 'run-away' grand jury as the grand jury could act from their own knowledge or observation and not only from charges made by the United States attorney."[95]
A presentment is generally drafted from the knowledge and findings of the jurors themselves, rather than a prosecutor, and signed individually by each juror who agrees with it. A presentment at common law stood public with or without approval of a prosecutor or court. In the early days of the Republic, the Attorney General hinted that a federal prosecutor was obliged to indict upon the presentment by the grand jury.[96] Thus, Rule 6 represented a monumental — and deliberate — change of grand jury practice.[97] Orfield's peculiar use of the term "runaway" grand jury in the committee notes may mark both the advent of this term into the legal lexicon[98] and the loss to history of true grand jury independence.[99]
With the Federal Rules, the grand jury was drastically altered, in what can only be seen as an immense assault on the grand jury as an institution, if not an absolute coup d'etat upon it. The rule drafters deliberately pigeonholed the citizen grand jury into a minor role of either approving or disapproving of a prosecutor's actions. With the enactment of Rule 6, the federal government's undeclared war on the grand jury was almost won. What remained of the federal grand jury as a free institution was left to the federal courts to whittle away even further.
The federal courts were quick to uphold the federal rules when it came to deciding matters relating to the grand jury. In almost cyclical logic, the federal courts have claimed in near unison that presentments accusing unindicted persons of crime cannot be allowed, absent judge or prosecutor approval, "past unchallenged practice" notwithstanding.[100] Thus, hundreds of years of grand jury jurisprudence was overthrown by codification.[101]
Justification for hobbling grand juries in this manner was based on the argument that those who are accused in grand jury documents are denied due process rights that the courts have a duty to protect.[102 ] It was argued that allowing the continuance of common law grand jury powers would expose countless persons — many of them government agents — to unanswerable accusations in the public eye.[103] Protecting public officials from public scorn thus won out over upholding the traditional powers of federal grand juries. Numerous avenues for innocent persons to fight such accusations are available.[104] Nevertheless, courts during the latter twentieth century have appeared to uniformly adopt the "protect people from grand jury accusations" rationale for barring the federal grand juries from issuing presentments.[105]
Another aspect of the grand jury's lost powers that has received little consideration in the legal literature is that of grand jury's loss of power to turn on the government and publicly exonerate a suspect. With curtailment of the grand jury's power to accuse without prosecutorial sanction also came curtailment of the grand jury's power to formally and publicly exonerate. This loss of power also serves the interests of modern government by allowing a prosecutor to resubmit a matter to a new grand jury, a practice which almost always can produce a true bill eventually — even against a ham sandwich.[106]
One principle example in American history of a political persecution that was exposed by the presentments of grand juries is the almost unbelievable story of Aaron Burr.[107] After what can only be described as a bizarre political career,[108] Burr found himself disliked by both the Federalists and the Republicans.[109] The United States Attorney for Kentucky, a staunch Federalist aligned with his own party's strongest rival President Jefferson, moved that a grand jury be summoned to consider charges against Burr for his alleged attempt to involve the United States in a war with Spain.[110] This grand jury from Republican-dominated Kentucky returned an "ignoramus bill," declining to indict Burr on the evidence.[111] Going even further, the grand jury issued a written declaration directed to the court in which they declared that Burr failed to exhibit "any design inimical to the peace and well-being of the country."[112]
A second grand jury was indubitably spurred by Jefferson himself.[113] The second proceeding convened in Mississippi Territory to consider similar treason charges against Burr relating to his expedition down the Mississippi River.[114] It was alleged that Burr intended to capture New Orleans, a city of nine thousand people protected by a thousand United States soldiers, using sixty unarmed men in ten boats.[115] The Mississippi grand jury not only declined to indict Burr in the affair, but returned presentments which clearly labeled the government's attempted charges as a vindictive prosecution.[116] The presentment concluded that "Aaron Burr has not been guilty of any crime or misdemeanor against the laws of the United States or of this Territory."[117] Furthermore, the grand jury declared that the arrests of Burr and his co-travelers had been made "without warrant, and . . . without other lawful authority,"[118] and represented a "grievance destructive of personal liberty."[119] In resounding condemnation, the grand jury pronounced its regret that "the enemies of our glorious Constitution" had rejoiced at the attempted persecution of Aaron Burr and expressed the opinion that such prosecutorial misconduct "must sap the vitals of our political existence, and crumble this glorious fabric in the dust."[120]
The grand jury's presentment power was thus used not only to accuse wrongdoers when government prosecutors refuse to do so, but to publicly declare the innocence of a targeted suspect in the very face of opposition by the prosecution. Ironically, the Mississippi grand jury was a "runaway" by today's standards. Nevertheless, a grand jury acting in such way offered preciously the type of protection envisioned by the Framers when they included the institution in the Bill of Rights as a check on the power of the government.[121]
Even more enlightening in comparison with the canons of modern criminal procedure, the Mississippi grand jury's presentment included a bold attack on the prosecution itself — an occurrence scarcely imaginable today. It was thus the grand jury's power over its presentments, rather than its indictments, that made it so fearsome. The effectiveness of early American grand juries in ferreting out the shortcomings of public officials "can be gauged from the long lists of grand jury presentments" of early America.[122] "Very little escaped the attention of the grand jurymen,"[123] which even took notice of the failures of town councils to provide stocks or a whipping post to punish offenders.[124]
V. CONCLUSION
The enactment in 1946 of the Federal Rules of Criminal Procedure has greatly decreased the power of federal grand juries. While widely thought of as a gift to defense attorneys at the time,[125] the codification of grand jury practice into Rule 6 of the Federal Rules of Criminal Procedure has largely confined the grand jury to its present state of impotence and has done little to protect defendants from the modern "runaway" federal government. Present federal grand jury practice, which forbids grand jurors from issuing presentments without consent of a federal prosecutor, is unconstitutional and violative of the historical principles on which the creation of the grand jury was premised.
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† Roger Isaac Roots, J.D., graduated from Roger Williams University School of Law in 1999 and Montana State University-Billings (B.S., Sociology) in 1995. He is founder of the Prison Crisis Project, a not-for-profit prison and criminal justice law and policy think tank based in Providence, Rhode Island. He would like to thank David Cicilline, Margaret Curran, Jonathan Gutoff, and Duane Horton for their thoughtful advice and assistance regarding this article.
1. See, e.g., STEPHEN A. SALTZBURG & DANIEL J. CAPRA, AMERICAN CRIMINAL PROCEDURE 696 (5th ed. 1996) (reprinting New Jersey's model grand jury instructions which contain the open acknowledgment of this: "Citizens in general have only a vague idea of what a grand jury is and what its functions are."); see also Susan W. Brenner & Gregory G. Lockhart, FEDERAL GRAND JURY: A GUIDE TO LAW AND PRACTICE 2 (1996) ("Surprisingly, given the power it wields, the grand jury, is an often-overlooked and little understood phenomenon in American law.").
2. Only occasionally does the public become privy to criticisms of the grand jury process. A recent source of popular unrest concerning the grand jury process surrounded the 1998 impeachment of President Bill Clinton for perjury and obstruction of justice offenses. Other noteworthy criticism of the process involved former Labor Secretary Raymond Donovan, who was acquitted on fraud charges, see Ray Jenkins, Editorial, He Could Indict the Easter Bunny, BALTIMORE SUN, January 29, 1996, at 7A, available in 1996 WL 6602238, and when 23 Colorado grand jurors went public in 1992 to complain that a United States Attorney's indictment did not properly reflect their views, see Editorial: The Eternal Flats Grand Jury The Issue: Should Jurors Be Allowed to Release Their Report? Our View: Yes, At Least In Part If Not In Full, ROCKY MOUNTAIN NEWS, July 7, 1997, at 40A. Former Texas governor John Connally also bitterly criticized the system after his indictment — followed by swift acquittal — on charges that as Secretary of the Treasury he took bribes from lobbyists. See Jenkins, supra. Donovan was widely quoted after his acquittal as asking, "Where do I go to get my reputation back?" Id.
3. See, e.g., Wood v. Georgia, 370 U.S. 375, 390 (1962) (describing the operation and purpose of the grand jury).
4. See Fred A. Bernstein, Note, Behind the Gray Door: Williams, Secrecy, and the Federal Grand Jury, 69 N.Y.U. L. REV. 563, 578 (1994) (stating that commentators disagree only on what to call the grand jury: "indictment mill," "rubber stamp," "tool," or "playtoy" have all been suggested).
5. Modern grand jury proceedings are normally conducted in the grand jury room, but at common law they could be conducted in private houses or other places for protection of the witnesses. See, e.g., United States v. Smyth, 104 F. Supp. 283, 300 (N.D. Cal. 1952); United States v. Gilboy, 160 P. Supp. 442, 458-59 (M.D. Pa. 1958). However, modern grand jury charges tend to limit this power, or even overtly conceal it from the grand jurors. See, e.g., Louis E. Goodman, Charge to the Grand Jury, 12 F.R.D. 495, 499-501 (N.D. Cal. 1952) (arguing against such freedom of movement and ordering the grand jury to "hold its meetings and conduct its investigations and deliberations in quarters provided by the Court and in no other places").
6. See Tony Mauro & Kevin Johnson, Grand Jury 'Very Lonely' For Witnesses, USA TODAY, March 3, 1998, at 1A (stating that during Independent Prosecutor Kenneth Starr's grand jury proceedings against President Clinton, there were up to a "half-dozen" government attorneys and staff people sitting opposite the witness).
7. See CHARLES H. WHITEBREAD & CHRISTOPHER SLOBOGIN, CRIMINAL PROCEDURE: AN ANALYSIS OF CASES & CONCEPTS 546 (3d ed. 1993) (stating that the grand jury has authority to act as a "watchdog" over government operations).
8. See FED. R. CRIM. P. 7(c)(l) (requiring that all indictments be "signed by the attorney for the government"). See also id. Advisory Committee Note 4 explaining Subdivision (a) of the same Rule (stating that grand jury "presentments," or non-government-approved accusations, "are obsolete, at least as concerns the Federal courts").
9. MARVIN ZALMAN AND LARRY SIEGEL, CRIMINAL PROCEDURE: CONSTITUTION AND SOCIETY 643 (2d ed. 1997) (emphasis added).
10. See Stuart Taylor, Jr., Taking Issue: Enough of the Grand Jury Charade, LEGAL TIMES, May 18, 1992, at 23 (describing grand jury subpoenas and indictments as "essentially unilateral decisions by prosecutors").
11. If the Fifth Amendment grand jury right has any purpose at all, it is to place a check on the prosecutorial power of the federal government. See Hale v. Henkel, 201 U.S. 43, 61 (1906) ("[Grand juries] are not appointed for the prosecutor or for the court; they are appointed for the government and for the people . . . .") overruled in part sub nom. Murphy v. Waterfront Comm'n, 378 U.S. 52 (1964). Unfortunately, modern grand jury practice tends to assume the existence of some affinity between the attorneys for the government and the grand jurors they present their cases to.
12. This writer has sought in vain to trace the term to its origins. Nothing about "runaway" grand juries appears in legal dictionaries, Supreme Court opinions, or any major legal encyclopedia. The first widely disseminated mention of the term "runaway grand jury" appears to be Professor Orfield's references to the term by the Advisory Committee's Reporter in 1946. See infra note 14 and accompanying text. The case law is similarly sparse of references to "runaway" grand juries until recently. But see United States v. Worcester, 190 F. Supp. 548, 559 (D. Mass. 1960) (stating rather imaginatively that "[a] grand jury can roam almost at will. It often does. What else is meant by the phrase 'a runaway grand jury'?"); Fields v. Soloff, 920 F.2d 1114, 1118 (2d Cir. 1990) (stating that "runaway" grand juries existed in the 1930s in New York); In re Martin-Tragona, 604 F. Supp. 453, 459-60 (D. Conn. 1985) (admonishing that "'[r]unaway grand juries'. . . may have a certain romantic allure, but federal law leaves little or no room for that species of romance"); United States v. Procter & Gamble Co., 174 F. Supp. 233, 236 (D.N.J. 1959) (mentioning that a "runaway" grand jury is an unusual situation).
See also the discussion of "runaway" grand juries in the book, MARVIN E. FRANKEL & GARY NAFTALIS, THE GRAND JURY: AN INSTITUTION ON TRIAL 107-116 (1977) and the discussion in the widely-consulted hornbook WAYNE R. LAFAVE & JEROLD H. ISRAEL, CRIMINAL PROCEDURE 631 (2d ed. 1992) (stating that "it takes a most unusual case for a grand jury to act as a "runaway" and indict notwithstanding the prosecutor's opposition).
13. See infra notes 71-84 and accompanying text.
14. See Lester B. Orfield, The Federal Grand Jury, 22 F.R.D. 343, 346 (1959).
15. See, e.g., United States v. Williams, 504 U.S. 36, 49 (1992) (citation omitted) (emphasis omitted); Note, Powers of Federal Grand Juries, 4 STAN. L. REV. 68, 69 (1951) ("The grand jury was appointed to protect community welfare, not merely to aid prosecutor or court.").
16. See Williams, 504 U.S. at 48 (citing United States v. R. Enters, Inc., 498 U.S. 292, 297 (1991).
17. Prior to the 20th Century, the grand jury itself was often the initiator of investigations and conducted their activities in both shield and sword functions essentially the same way. See BRENNER & LOCKHART, supra note 1, at 26.
18. See generally DAVID BURNHAM, ABOVE THE LAW: SECRET DEALS, POLITICAL FIXES AND OTHER MISADVENTURES OF THE U.S. DEPARTMENT OF JUSTICE passim (1996) (stating that the U.S. Justice Department now operates with few structural limitations and has become increasingly unaccountable).
19. Properly speaking, the Fifth Amendment right to indictment applies only to the federal government. The right to indictment by grand jury is one of the only provisions of the Bill of Rights that has not been incorporated to the States by the Supreme Court. The Supreme Court first rejected incorporation of the right in Hurtado v. California, 110 U.S. 516, 538 (1884) and has reaffirmed its holding in subsequent decisions.
A few examples of practices and cases involving state grand juries are included in this paper for illustration. In general, however, this paper will concentrate on federal grand juries. Grand jury practice varies so widely among the states that it is difficult to provide a comprehensive treatment of that topic in this comment. See BRENNER & LOCKHART, supra note 1, at 2.
20. U.S. CONST, amend. V.
21. WHITEBREAD & SLOBOGIN, supra note 7, at 546. Historically, the grand jury was regarded as a primary security for the innocent against malicious and oppressive persecution. See Wood v. Georgia, 370 U.S. 375, 389-391 (1962).
22. See 1 ORFIELD'S CRIMINAL PROCEDURE UNDER THE FEDERAL RULES 392 (Mark S. Rhodes ed., 2d ed. 1985) [hereinafter ORFIELD'S];
Under the Constitution the grand jury may either present or indict. Presentment is the process whereby a grand jury initiates an independent investigation and asks that a charge be drawn to cover the facts if they constitute a crime. Since the grand jury may present, it may investigate independently of direction by the court or the United States Attorney. Proceeding by presentment is now obsolete in the federal courts. Id.
Orfield's noted that "the common law powers of a grand jury include the power to make presentments, sometimes called reports, calling attention to actions of public officials, whether or not they amounted to a crime." Id. at 392 n.16 (citing In re Grand Jury 315 F. Supp. 662 (D. Md. 1970).
23. See, e.g., Hale v. Henkel, 201 U.S. 43, 64 (1906) (recognizing that common law authority stood for the proposition that "none but witnesses have any business before the grand jury, and that the solicitor may not be present, even to examine them"). Although widespread practice in the federal system had been to allow a government attorney to present evidence to the grand jury, this was by no means a steadfast rule.
24. See WHITEBREAD & SLOBOGIN, supra note 7, at 546 (stating that the grand jury had the ability to both investigate the government and to deny a government indictment).
25. See ORFIELD'S, supra note 22, at 389; In re Special February 1975 Grand Jury, 565 F.2d 407 (7th Cir. 1977); United States v. Smyth, 104 F. Supp 283, 288 (N.D. Cal. 952). When functioning properly, the grand jury is supposed to be an ever-present danger to tyranny in government. See ARTHUR TRAIN, THE PRISONER AT THE BAR 128 (1926) (stating that the grand jury filled a need as a barrier between the powerful and the weak and as a tribunal before which the weak could accuse the powerful of their wrongs).
26. See Fred A. Bernstein, Note, Behind the Gray Door: Williams, Secrecy, and the Federal Grand Jury, 69 N.Y.U. L. REV. 563, 563-623 (1994).
27. Bernstein, 69 N.Y.U. L. REV. at 622.
28. Id. at 623.
29. For statistical evidence of grand jury capture, see infra notes 39-47 and accompanying text.
30. See Note, 69 N.Y.U. L. REV. at 577.
31. Id. at 577-78.
32. Id. at 578-89 (stating that the procedural decline of the grand jury has occurred as the federal system was straining to keep up with an increasing number of criminal prosecutions).
33. Id. at 578.
34. Id. at 578-79.
35. William J. Campbell, Eliminate the Grand Jury, 64 J. CRIM. L. & CRIMINOLOGY 174 (1973).
36. United States v. Dioniso, 410 U.S. 19, 23 (1973) (Douglas, J., dissenting).
37. See Mark Kadish, Behind the Locked Door of an American Grand Jury: Its History, Its Secrecy, and Its Process, 24 FLA. ST. U. L. REV. 1-78 (1996).
38. See Note, 69 N.Y.U. L. REV. at 578.
39. BURNHAM, supra note 18, at 359.
40. Id.
41. Id.
42. Taylor, supra note 10, at 23.
43. BURNHAM, supra note 18, at 360. Although statistics like this are impressive, it should be noted that statistics alone cannot adequately measure the effectiveness of grand juries in screening prosecutions effectively. One critic of statistical approaches has pointed out a number of problems with using numbers of true bills to describe grand jury ineffectiveness:
[E]ven a brief reflection shows how unhelpful these figures are. That grand juries nearly always return true bills may indeed demonstrate that jurors simply approve whatever charges the government submits, but it could also show that grand juries are a great success. A review of the prosecutor's decisionmaking leading up to the request for an indictment shows why.
Federal prosecutors know that virtually all of their charging decisions must be approved by the grand jury. Thus, in deciding which charges to bring, the prosecutor must determine not only which accusations can be proven at trial, but also which accusations will result in an indictment. If we assume that prosecutors as a group will normally decline to present charges to a grand jury that they think will be rejected, we would expect that prosecutors would submit only those cases that are sufficiently strong to survive a grand jury's review. Thus, regardless of whether the grand jury is serving as an effective screen, we would expect a high percentage of the cases presented to lead to indictments.
Indeed, contrary to the suggestion of critics, there would be cause for concern if grand juries refused to indict in a high percentage of cases.
44. Andrew D. Leipold, Why Grand Juries Do Not (and Cannot) Protect the Accused, 80 CORNELL L. REV. 275-76 (1995). BURNHAM, supra note 18, 360.
45. U.S. DEPT. OP JUSTICE, NATIONAL INSTITUTE OP JUSTICE: OFFICE OF DEVELOPMENT, TESTING AND DISSEMINATION, GRAND JURY REFORM: A REVIEW OF KEY ISSUES 21 (1983).
46. Id. at 22.
47. Leipold, 80 CORNELL L. REV. at 269.
48. Statistical figures showing a higher prevalence of grand jury reluctance to follow the government in ages past are almost nonexistent. However, a table of felony arrests in New York County between 1900 and 1907 found on page 111 of the 1926 book The Prisoner at the Bar by Arthur Train provides some rare illumination. In those seven years, some 5,214 out of 57,241 people were arrested by the police on felony charges whom New York state grand jurors decided not to indict. Interestingly, the rate of indictment rose significantly in those seven years. See TRAIN, supra note 25, at III.
49. The National Association of Criminal Defense Lawyers, for example, has promoted a grand jury "bill or rights" to be enacted by Congress, which would include these and other reforms. See Gerald B. Lefcourt, High Time For A Bill of Rights For the Grand Jury, 22 APR CHAMPION 5 (Apr., 1998). Lee Hamel, a former federal prosecutor in Houston, has gone even further by suggesting that Congress should specifically make it a crime for the prosecution to mislead a grand jury by such conduct as withholding exculpatory evidence. Lee Hamel, Prosecutorial Responsibility, TEXAS LAWYER, June 15, 1992, at 13.
While the U.S. Attorneys' Manual specifically provides for an internal policy to present exculpatory evidence to the grand jury, See DEPARTMENT OF JUSTICE, U.S. ATTORNEYS' MANUAL, 9-11.233, no binding statutory or case law now imposes a legal obligation. The enactment of such legislation enforceable upon government attorneys would not seem to infringe on the rights and powers of the grand jury. But see BRENNER & LOCKHART, supra note 1, at 18 (stating that such a limitation on the prosecutor may implicate the separation of powers if it is considered to interfere with the exercise of the executive function). See id. ("[I]t remains to be seen whether Congress can be persuaded to review allegations of prosecutorial misconduct, and, if so, whether such intervention would violate the separation of powers.").
50. In some state jurisdictions, including California and South Carolina, grand juries can hire experts such as accountants to assist them in conducting special investigations, especially where the activities of public officials are being investigated. See U.S. DEPT. OF JUSTICE, NATIONAL INSTITUTE OF JUSTICE, MONOGRAPHS: GRAND JURY REFORM: A REVIEW OF KEY ISSUES 23 (1983).
51. See ABA GRAND JURY POLICY AND MODEL ACT 5, 11 (2d ed. 1982) (enunciating in Principle No. 22 the duty of court to give written charge to jurors completely explaining their duties and limitations).
52. BRENNER & LOCKHART, supra note 1, at 4.
53. Id.
54. Id.
55. Id.
56. Id. at 289-90 (citations omitted).
57. See FRANKEL & NAFTALIS, supra note 12, at 10.
58. See Mark Kadish, Behind the Locked Door of an American Grand Jury: Its History, Its Secrecy, and Its Process, 24 FLA. ST. U. L. REV. 9 (1996).
59. See id; Note, Powers of Federal Grand Juries, 4 STAN. L. REV. 77 (1951). [T]he grand jury developed at a time of small rural communities, when the government had not yet assumed responsibility for enforcing the criminal law. Private persons could initiate prosecutions. The grand jury ensured that privately instituted proceedings would not go forward until a representative body of men of the neighborhood had checked the facts and found a reasonable basis for prosecution.
60. Note, 4 STAN. L. REV. at 77.
In 1906 the United States Supreme Court dealt with the question of whether grand juries could be restricted from straying into investigations of issues not formally presented to them by prosecutors. See Hale v. Henkel, 201 U.S. 43 (1916). The Court held that it was "entirely clear . . . under the practice in this country," that grand jurors may proceed upon either their own knowledge or upon the examination of witnesses brought before them, "to inquire for themselves whether a crime cognizable in the court has been committed." Hale, 201 U.S. at 65. Thus, in some respects, the "runaway" grand jury, though not given such a name at the time, has been upheld by the nation's highest court. It is therefore debatable whether the modern Federal Rules of Criminal Procedure, which have limited federal grand jury action since 1946, are constitutional. See infra notes 87-128 and accompanying text (discussing the constitutionality of Rules 6); See also FRANKEL & NAFTALIS, supra note 12, at 111 (mentioning that Rule 6's language "sounds like an inescapable and unambiguous barrier to the grand jury's proceeding without an attorney. . . . [b]ut people learned in the law have seen means of escaping and possibly overriding barriers that appear insurmountable at first. While the barriers here still stand, the debate may not be over.").
61. See, Hale, 201 U.S. at 63 (citations omitted).
62. Id.
63. Id.
64. Id.
65. See Mark Kadish, Behind the Locked Door of an American Grand Jury: Its History, Its Secrecy, and Its Process, 24 FLA. ST. U. L. REV. 10 (1996).
66. Kadish, 24 FLA. ST. U. L. REV. at 10.
67. Id. at 10-11.
68. See FRANKEL & NAFTALIS, supra note 12, at 11.
69. Id.
70. Id.
71. Id. at 12.
72. Id.
73. Id.
74. Richard Calkins, The Fading Myth of Grand Jury Secrecy, 1 J. MARSHALL J. PRAC. & PROC. 18, 19 (1967).
75. See FRANKEL & NAFTALIS, supra note 12, at 15.
76. Id.
77. Id.
78. See Fred A. Bernstein, Note, Behind the Gray Door: Williams, Secrecy, and the Federal Grand Jury, 69 N.Y.U. L. REV. 563, 596 (1994).
79. See FRANKEL & NAFTALIS, supra note 12, at 15.
80. In the federal system, the powers of the grand jury have never been as broad as those known by colonial pre-Revolutionary grand juries for a variety of reasons. First, the federal government itself was historically one of very limited criminal jurisdiction, so the call for federal grand juries was not as common or strong as at the state level.
Second, the fact that federal cases tend to involve crimes that are more complex than those of state prosecutions made independence of individual grand jurors over the area of expertise less likely. See BRENNER & LOCKHART, supra note 1, at 18. Also, federal grand juries were traditionally distanced from the sort of "public affairs" investigations into community life that drew the attention of state grand juries. Id. at 53.
81. While the Grand Jury Clause of the Fifth Amendment invokes the "Grand Jury," nothing in the text provides any indication as to just what a grand jury is or what type of grand jury is required. This meaning must be garnered from the common law. See United States v. Warren, 26 F. Supp. 333, 334 (E.D.N.Y. 1939).
But which common law? Is the grand jury as required by the Fifth Amendment the common law grand jury known in the colonies in 1776? In England in 1776? In the United States when the Bill of Rights was ratified in 1789? When Englishmen landed in America in 1606? After all, the grand jury is a 900 year-old institution, whose operation has changed greatly over the centuries. See generally Helene E. Schwartz, Demythologizing the Historic Role of the Grand Jury, 10 AM. CRIM. L. REV. 701 (1972). For that matter, grand jury operation differed greatly by region, both in England and her colonies, throughout the Seventeenth and Eighteenth Centuries, See Goodman v. United States, 108 F.2d 516, 518 (9th Cir. 1939) (stating that grand jury practice has developed in widely divergent ways partly due to local custom). Thus, any attempt to pin down "grand jury law" to a single era and venue would simultaneously defy the common law traditions of other eras and venues. Another problem is that the "common law" meant very little if anything in federal jurisdiction because common law crimes were not recognized in federal courts. See, e.g., United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32, 33 (1812).
The question of what common law to apply where the Constitution called for a common law interpretation was problematic to American jurists concerning a wide variety of topics for an entire generation after separation from the mother country. See generally LAWRENCE M. FRIEDMAN, A HISTORY OP AMERICAN LAW 110-15 (2d ed. 1985). While some early American courts routinely consulted English decisions, others went so far in the opposite direction as to prohibit the reading of English authority in their courtrooms. Id. at 111-12. Due to the paucity of published American case reports, more English than American cases were cited in American reports for a generation after Independence. Id. at 112. Nonetheless, by the middle of the 19th century there developed a truly distinctive common law system in the United States. Id. at 113 (stating that the first generation of American jurists created a "separate language of law within the family founded in England").
For these reasons, federal grand jury practitioners must look in many respects to the practice in the states, because state grand juries provide a more unbroken chain of inheritance to the common law than do those administering federal law. Federal courts have differed as to the scope of the federal grand jury's powers. It has been said that Congress has not defined those powers, or exact limitations on them. Application of Texas Co., 27 F. Supp. 847, 850-51 (E.D. Ill. 1939); See also ORFIELD'S, supra note 22, at 286 (noting that "[i]n 1809 Chief Justice Marshall, sitting as a circuit justice, stated that there was no act of Congress conferring on federal courts the power to summon grand juries, or describing their powers").
The Chief Judge of the Second Circuit observed that the constitutional grand jury was one that was intended to operate substantially like its English progenitor. United States v. deary, 265 F.2d 459, 460 (2d Cir. 1959) (stating that the grand jury "has remained as free of court-made limitations and restrictions as it was in England at the time the Fifth Amendment was adopted"). Yet the practice in grand jury proceedings in the United States deviates in many ways from that known in England. See generally Hale v. Henkel, 201 U.S. 43 (1906). This is especially true in the finding of bills of indictment. Thus, by English colonial standards, the modern federal grand jury would seem to be unconstitutional. But see ORFIELD'S, supra note 22, at 390 (suggesting that "the grand jury has remained as free of court-made limitations and restrictions as it was in England at the time the Fifth Amendment was adopted").
82. See In re Grand Jury, 315 F. Supp. 662, 673 (D. Md. 1970) ("Federal statutes are silent on the relationship which is to exist between a Federal Grand Jury, the District Court which summons it, and the United States Attorney's office in the District. From 1789 to the present, Congress has made no definitive statement concerning Grand Jury powers.").
83. While the Fifth Amendment right to indictment by grand jury extends only to federal criminal prosecutions, numerous states provide for similar rights in their state constitutions. Notably, however . . . the rules governing state grand juries vary tremendously. See BRENNER & LOCKHART, supra note 1, at 2 (noting that "[G]rand jury practice varies so widely among the states that it is neither possible nor practical to provide a comprehensive treatment of that topic in this volume."). See also Susan W. Brenner, The Voice of the Commonity: A Comparison of Federal and State Grand Juries, 3 VA. J. SOC. POL'Y L. 67 (1995) (discussing state grand jury practices).
84. Critics of unbridled grand juries may cite a wealth of historical precedent to support their position. For example, overzealous and overreaching grand juries figured prominently in the era of the Sedition Acts. The Federalists, marshals and judges who totally controlled the judicial branch of government — blatantly packed panels with sympathizers and allowed offensive, political charges to be delivered to these grand juries. See Schwartz, 10 AM. CRIM. L. REV. at 723. The famous impeachment proceedings against United States Supreme Court Justice Samuel Chase were in part initiated because of Chase's habit of turning grand jury charges into Federalist harangues. Id. at 727-28. Still, the failure of the grand jury to act as a check on government persecution during this period can be attributed more to misuse and abuse of the grand jury process than to the failure of the institution itself. Grand juries were impaneled improperly, for an improper purpose, and were charged improperly. Id. at 732 (stating that "such blatantly biased panels could hardly have afforded the safeguard which grand jurors were sworn to provide" and that "some of the nation's founders indulged in chicanery designed to circumvent the protective barrier in order to crush their opponents"). Even after the end of the Sedition Act hysteria, the anti-Federalists aligned with President Thomas Jefferson abused the grand jury process in pursuit of their hated Federalist opponents. Id. (recounting that soon after his election as President, Thomas Jefferson "sullied his own reputation as the defender of the people's liberties" by relying on the misuse of grand juries to conduct a "personal vendetta against his enemy, Aaron Burr"). Initially, Aaron Burr was completely exonerated by two separate grand juries in two separate states before finally being indicted by a Republican-packed grand jury in Jefferson's home state of Virginia on charges that he "lev[ied] war upon the United States." Id. at 738. A trial jury ultimately acquitted Burr, under the judicial supervision of none other than John Marshall. Id.
85. The Populist era of the early 20th Century saw some attempts to revitalize the grand jury. During that period, ex-jurors acted to protect the grand jury's powers by forming associations. The Grand Juror's Association of New York was founded in 1912, and began publishing The Panel, a pro-grand jury periodical, in 1924. Chicagoans founded the Grand Juror's Federation of America in 1931, and associations apparently sprang up in other localities. See Renee B. Lettow, Reviving Federal Grand Jury Presentments, 103 YALE L.J. 1333, 1342 n.50 (1994).
86. Codification thrived as a trend in American law during the latter part of the 19th and the early part of the 20th Centuries. See FRIEDMAN, supra note 81, at 391-411. Criminal procedure, however, posed difficulties to would-be codifiers that other areas of American law did not, due primarily to constitutional considerations. Id. at 401 (noting the 5th Amendment grand jury requirement was a nuisance to those who sought to codify federal criminal procedure).
87. See FED. R. CRIM. P., INTRODUCTION, PROCEDURES FOR THE CONDUCT OP BUSINESS BY THE JUDICIAL CONFERENCE COMMITTEES ON RULES OF PRACTICE AND PROCEDURE, 1:1: p. vii
Each Advisory Committee shall carry on 'a continuous study of the operation and effect of the general rules of practice and procedure now or hereafter in use' in its particular field, taking into consideration suggestions and recommendations received from any source, new statutes and court decisions affecting the rules, and legal commentary. Id.
88. See Lettow, 103 YALE L.J. at 1334 (suggesting that the power of presentment is a constitutional right of grand juries).
89. U.S. CONST. amend. V states:
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, or in the Militia, when in actual service in time of War or public danger. U.S. CONST. amend. V.
90. See ADVISORY COMMITTEE NOTE 4, FED. R. CRIM. PRO. 7(a) ("Presentment is not included as an additional type of formal accusation, since presentments as a method of instituting prosecutions are obsolete, at least as concerns the Federal courts."). A few voices in the federal judiciary, however, have ignored this language and allowed for "presentments" or unapproved statements of federal grand juries to stand public regardless of the will of federal prosecutors. For a discussion of this issue, see Phillip E. Hassman, Annotation, Authority of Federal Grand Jury To Issue Indictment Or Report Charging Unindicted Person With Crime Or Misconduct, 28 A.L.R. FED. 851 (1976).
91. See ORFIELD'S, supra note 22, at 392 n.16 (noting that "[t]he common law powers of a grand jury include the power to make presentments . . . calling attention to actions of public officials, whether or not they amounted to a crime).
92. See Hassman, 28 A.L.R. FED. at 854-57.
93. However, on occasion, grand juries have used the term "presentment" to indicate what is commonly a grand jury report, or a statement to the court regarding some matter but which neither recommends indictment nor initiates any prosecution. Id. at 853 n.2.
94. Lester B. Orfield, The Federal Grand Jury, 22 F.R.D. 343, 346 (1958).
95. Orfield, 22 F.R.D. at 346.
96. See Renee B. Lettow, Reviving Federal Grand Jury Presentments, 103 YALE L.J. 1333, 1339 (1994).
97. In re Grand Jury, 315 F. Supp. 662, 673 (D. Md. 1970) ("The Advisory Committee note does not indicate that the quoted provision was intended to change existing practice, although of course the Rule has the effect of law.").
98. See ORFIELD, supra note 12 at 346 (discussing the question of where the term "runaway grand jury" originated).
99. It must be noted that the capture of the grand jury's presentment power has never faced direct Supreme Court review as to its constitutionality. The words of United States Supreme Court Justice Hugo Black, when dissenting from the decision to enact the Federal Rules of Criminal Procedure, are particularly relevant:
Whether by this transmittal the individual members of the Court who voted to transmit the rules intended to express approval of the varied policy decisions the rules embody I am not sure. I am reasonably certain, however, that the Court's transmittal does not carry with it a decision that the amended rules are all constitutional.
FED. R. CRIM. P., ORDERS OF THE SUPREME COURT OF THE UNITED STATES ADOPTING AND AMENDING RULES, ORDER OF FEB. 28, 1966 (Black, J., dissenting). For a thoughtful law review note on the constitutionality of Rule 6, see Lettow, 103 YALE L.J. at 1333.
100. Phillip E. Hassman, Annotation, Authority of Federal Grand Jury To Issue Indictment Or Report Charging Unindicted Person With Crime Or Misconduct, 28 A.L.R. FED. 851, 857 (1976).
101. Ironically, a common argument during times when presentments were common was that presentments were too trivial. See, e.g., TRAIN, supra note 25, at 126 (stating that "[a]n examination of the long list of presentments on file in the office of the clerk of Court of General Sessions [of New York]" shows only the consumption of many working hours, with only the most fleeting of effect on the public).
[I]n general it may be said that the only effect of a grand jury's meddling with these things is to detract from the dignity of its office and the importance of the work which it and it alone can lawfully do.
The lay reader will naturally be led to inquire why this archaic institution which it costs so much time and money to perpetuate, which causes so much unnecessary inconvenience to witnesses and offers so many technical opportunities for delay, which frequently is ineffective and officious, and for the most part concerns itself with the most trivial matters only, should not be abolished ....
102. Id. at 126-27.
A carefully considered overview of these issues can be found in the 1976 A.L.R. Annotation by Phillip E. Hassman. Hassman, 28 A.L.R. FED. 851.
103. Id. at 856 (noting that one argument for allowing accusatory presentments is that the public employee and official is "the most frequent target" and "must be prepared to accept investigation and exposure").
104. Offended persons may, for example, challenge the statements of a presentment by filing a motion to expunge the grand jury report, by a libel action against the grand jurors or the United States Attorney, or possibly through the federal civil rights statutes. Id. at 857-58.
105. See, e.g., In re Grand Jury Proceedings, 813 F. Supp. 1451 (1992).
106. The effect of a public presentment exonerating a suspect on any future proceedings by the government against the same target is difficult to gauge. The effect of a public presentment expressing a finding that the government has improperly pursued a case against a person before the grand jury might well serve the interests of justice.
The ham sandwich reference is a tribute to Judge Sol Wachtler, a former high court judge of New York, who coined the legendary criticism of grand juries: "Any prosecutor who wanted to could indict a ham sandwich." Tony Mauro & Kevin Johnson, Grand Jury 'Very Lonely' For Witnesses, USA TODAY, March 3, 1998, at 2A:3. This flippant semi-truism has been popularized by observers of grand jury law and is often repeated — only half jokingly — by commentators.
107. After fatally wounding Alexander Hamilton in a pistol duel in 1804, Aaron Burr traveled West to either restore his lost political clout or sabotage the new nation in spite (historians continue to differ over the question). See Helene E. Schwartz, Demythologizing the Historic Role of the Grand Jury, 10 AM. CRIM. L. REV. 733-34 (1972) (briefly summarizing Burr's efforts either to sever those states and territories west of the Allegheny Mountains from the Union or to put more land under American domination through an eventual attack on Mexico).
108. Indeed a political career that culminated in the murder of one of the United States' principle Founding Fathers, Alexander Hamilton, while Burr was vice president. Schwartz, 10 AM. CRIM. L. REV. at 733.
109. Schwartz, 10 AM. CRIM. L. REV. at 734. (stating that "the destruction of any possibility of Burr's returning to a place of power on the political scene was one issue on which the two parties agreed").
110. Id.
111. Id. at 734-35 (stating that the people of Kentucky did not resent Burr because of his murder of Hamilton and in fact supported Burr in his contentions with the "hated Federalist [, United States Attorney] Daviess").
112. Id. at 735 (quoting from J. COOMBS, THE TRIAL OF AARON BURR FOR TREASON, xix (1864)).
113. Jefferson is said to have been so determined to see Burr "hanged as a traitor [that] he was ready to abandon all constitutional" constraints in the process. See DAVID WALLECHINSKY & IRVING WALLACE, THE PEOPLE'S ALMANAC #2 171 ((1978):
[Jefferson] not only announced his opinion that Burr was guilty before the jury could consider the case, but he attempted to bribe witnesses with promises of presidential pardons if only they would testify against Burr. Concerning this case, Jefferson was the author of this incredible statement: "There are extreme cases when the laws become inadequate even to their own preservation, and where the universal resource is a dictator, or martial law." Id.
114. Schwartz, 10 AM. CRIM. L. REV. at 735.
115. Id.
116. Id.
117. Id. (emphasis added).
118. Id.
119. Id.
120. Id. at 735-36. The presentment read, in pertinent part:
The grand jury of the Mississippi Territory, on a due investigation of the evidence brought before them, are of opinion that Aaron Burr has not been guilty of any crime or misdemeanor against the laws of the United States or of this Territory, or given any just cause of alarm or inquietude to the good people of same. The grand jurors present, as a grievance, the late military expedition, unnecessarily, as they conceive, fitted out against the person and property of the said Aaron Burr, when no resistance had been made to the civil authorities.
The grand jurors also present, as a grievance destructive of personal liberty, the late military arrests, made without warrant, and, as they conceive, without other lawful authority; and they do sincerely regret that so much cause has been given to the enemies of our glorious Constitution to rejoice at such measures being adopted, in our neighboring Territory, as, if sanctioned by the Executive of our country, must sap the vitals of our political existence and crumble this glorious fabric in the dust. Id.
121. Even in Aaron Burr's case, the power and duplicity of the Executive finally won out over the independence of early American grand juries. After twice failing to garner a grand jury indictment against Aaron Burr, the Jefferson Administration moved venue to Virginia, "stronghold of Jefferson, Madison and Monroe." Schwartz, 10 AM. CRIM. L. REV. at 736. Rutgers Law Professor Helene Schwartz wrote: "Perhaps at no other period in his public career did Jefferson so disgrace himself as he did in his continued but futile efforts to permanently dispose of Aaron Burr. 'All of his professions as apostle of "individual rights" were sunk in the abyss of Burr.'" Id. (quoting W. McCALEB, NEW LIGHT ON AARON BURR 99 (1963)).
The Virginia grand jury, packed with Republicans, returned true bills of indictment against Burr and his alleged co-conspirators charging that they had levied war on the United States. Id. The matter then was sent to a trial jury, which acquitted Burr.
122. See EDGAR J. McMANUS, LAW AND LIBERTY IN EARLY NEW ENGLAND: CRIMINAL JUSTICE AND DUE PROCESS 1620-1692 (1993).
123. McMANUS, supra note 122, at 63.
124. Id.
125. See BRENNER & LOCKHART, supra note 1, at 188 (noting that one commentator described the rule as a "wide change" in prior law, which had made access to grand jury materials virtually impossible for defense attorneys).
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