The Grand Jury Desperately in Need of Reform Part 2

In 1166 King Henry II intended to increase his control over the citizen special panel ry and grasp power for the domain that had previously rested with baronial and ecclesiastical authorities.

Since that time, the grand jury did change to the use of the sword and shield methodology to protect its citizenry, but the methods are still essentially the same with one powerful person controlling the destiny of others.

We are finding today that the system is being abused and is in dire need of reform.

There have been many attempts at reform, but they all seem to become stalemated within Congress. If you were in my shoes you would have very definite opposite feelings about this totalitarian method of justice. But you must know the whole story especially were civil and human rights were and are abused.

For a defendant who has committed a crime, it must be certified that the act was committed upon evidence garnered exclusively by the grand jury. This is the sword and shield and the will of the court system. This shield is to protect the public from vicious felons who can do harm to others. It is not meant to convene on small matters which is done directly by the petite jury. The petite jury is the one you see on television of 12 good people making a decision as to the defendant’s fate, or innocence.. On the other hand, the special panel has the powers of investigation and the prosecutor supplies the evidence to the petite jury. The defense also has methods that can disprove the evidence given by the prosecutor who is the collector and disseminator of critical information regarding the crime committed. This is the confrontational and good part of the justice system. And if there is no confrontation and with only the prosecutor’s evidence, the defendant has to find his own evidence of defense. In other words, the prosecutor gives certain evidence and if that evidence is wrong, proving that there was no crime committed by this person, the defendant should be set free, but that is rarely the case. The defendant’s attorney must be certified by the federal court to participate in defending his client, and he is held to the ruling of the judge. The reality is that the judge controls the rules and evidence in what I called the basketball team. And if you do not play according to his rules and do what the judge says, the defense attorney is barred from defending his client.

In this pretrial hearing there are only a few items that need to be proven for a sentence to be imposed. That of factual and full presentation evidence can be made to the jury or even if there is no jury, the judge can render a decision according to the facts as presented.

The important parts or aspects of this pre-trial investigation have all been placed there for a very specific reason and must be completed in good faith to whomever is in charge of that area. The most important aspects of the pretrial hearing and one of the most important is the adjudicators, followed by mens rea and discovery of which we will talk about in future articles.

The grand jury is probably the most important component within the pretrial hearing because it’s information that has been gathered is the only means of evidence given to the jury for deliberations. And here truth must be known as the truth and not the fabrication of a prosecutor. Once all the facts have been collected the special panel makes this decision, dependent on the facts, for or against probable cause. The petite jury is the one you see on television of 12 people who decide the fate of the defendant.

In this case the prosecutor has the file and is awarded the probable cause decision. At his hands, and with almost unlimited power, he has things that he can do within the court without anyone’s consent. He can subpoena anyone, question anyone, he can go on a hunting expedition to find what he is looking for, which is evidence. This evidence can be correct, or it can be fabricated.

The defendant plays an important role in that he is invited to testify. This gives the defendant the opportunity to nullify the fabrications of the prosecutor and prove that the evidence he is collecting is wrong; the grand jury can render a verdict of innocent. This would strike a harsh blow to the prosecutor and he would lose the case.

The harsh reality of these proceedings is that it is a secret and if a person violates this secrecy, the punishment is swift and long. In Europe, you will be charged with disobeying the secrecy of the special board, and immediately be sentenced and sent off to serve a long sentence as he has broken a very strong contract.

if the defendant wishes to speak up on his own behalf, but the court makes him unavailable by placing him in jail for no reason, so that he cannot testify on his own behalf, rights his civil or human rights have been extremely violated by the court. This was the case of this author as he states today that he was a defendant in a nonviolent case, one of very low ranking within that category, and should have been released. Also, he should’ve never been convicted as guilty because if this case went to trial, the government would lose, and they cannot afford to that this is the as they have to maintain their 98.6% conviction ratio.

We must look at the past to see how today the grand jury runs and on what basis.

I call upon resources to explain this in far more detail as they are professionals and have years of experience in research and they have done an excellent job explaining the beginning part of the grand jury.

“Referring to this history of the grand jury, Justice Powell, writing for the Supreme Court majority in United States v. Calandra,4 noted:

The institution of the grand jury is deeply rooted in Anglo-American history. In England, the grand jury served for centuries both as a body of accusers sworn to discover and present for trial persons suspected of criminal wrongdoing and as a protector of citizens against arbitrary and oppressive governmental action. In this country the Founders thought the grand jury so essential to basic liberties that they provided in the Fifth Amendment that federal prosecution for serious crimes can only be instituted by “a presentment or indictment of a Grand Jury.” The grand jury’s historic functions survive to this day. Its responsibilities continue to include both the determination whether there is probable cause to believe a crime has been committed and the protection of citizens against unfounded criminal prosecutions.

What this means is that the special panel living is a secret ex parte proceeding where the evidence is presented by the prosecutor and they votes whether to indict without ever hearing from the court (other than a preliminary session welcoming them and giving some general guidelines about their duties) or defense counsel. Unsurprisingly, under these circumstances the special panel tend to bond with the prosecutor and indict when the prosecutor indicates there should be an indictment.

Thus, the adjudicators functions largely as an investigative tool of the prosecutor. Employing the power of compulsory process in a secret proceeding, the prosecutor investigates and determines with virtually no check by the adjudicators who gets indicted and for what.

In the last 25 years two significant Supreme Court decisions, United States v. Calandra6 (1974) and United States v. Williams7 (1992), broadened the prosecutor’s already substantial control over the special board.

In Calandra, the Court upheld the use in special board proceedings of unconstitutionally obtained evidence, stating: “[W]e believe that allowing a grand jury witness to invoke the exclusionary rule would unduly interfere with the effective and expeditious discharge of the grand jury’s duties.”

In Williams, virtually abandoning traditional judicial supervision over prosecutorial conduct in the special board, the Court held (5-4) that it lacked the power to dismiss an indictment on grounds that the prosecutor had failed to disclose exculpatory evidence. Noting, “The adjudicators grand jury’s operational separateness from its constituting court,” the Supreme Court dubiously concluded: “Imposing upon the prosecutor a legal obligation to present exculpatory evidence in his possession would be incompatible with this system.”

One key development is that recognized by Seventh Circuit Court of Appeals Judge Richard Posner in a recent opinion castigating an act of prosecutorial misconduct: “The increase in the number of federal prosecutors in recent years has brought with it problems of quality control.”

“Additionally, the Supreme Court’s 1992 decision in Williams, that the federal courts lack supervisory power over the grand jury, has now given us several years of experience with a criminal justice system in which prosecutors are free to conduct proceedings however they wish, no matter how abusive.”

Reforms

1. A witness before the special panel shall have the right to be accompanied by counsel in his or her appearance before the special panel.

2. No prosecutor shall knowingly fail to disclose to the special board evidence which will tend substantially to negate guilt.

Prosecutors can – and sometimes do – manipulate the grand jury which operates virtually under total prosecutorial control. Fairness to the special board target of investigation requires that the prosecution be required to present the evidence negating guilt.

3. The prosecutor shall not present to the grand jury evidence which he or she knows to be constitutionally inadmissible at trial.

4. A target of a the investigation shall be given the right to testify before the adjudicators. Prosecutors shall notify such targets of their opportunity to testify unless notification may result in flight, endanger other persons or obstruct justice, or unless the prosecutor is unable to notify said persons with reasonable diligence. A target of the adjudicators may also contact the foreperson in writing to offer information or evidence..

This principle is intended to insure that individuals are given the opportunity to testify on their own behalf prior to being indicted. This is an essential ingredient in a fairly functioning grand jury – and criminal justice – system. Without it, the grand board’s essential function of arriving at an accurate indictment is undermined because the jurors may be denied certain evidence.

5. Witnesses should have the right to receive a transcript (at their own expense) of their testimony.

6. The special jury shall not name a person in an indictment as an unindicted co-conspirator to a criminal conspiracy. Nothing herein shall prevent the prosecutor from supplying such names in a bill of particulars.

Compelling Need for Reform

The purpose of grand jury reform is to bring about changes in the institution such that it functions in fact as most feel it should – as an investigative arm of the government capable of combating crime while simultaneously acting as a needed protector of citizens’ rights. Some, following court precedent, may object in the belief that the special jury has never ceased to act as both a sword and shield. Prosecutors may perceive reform as a threat to their ability to administer justice. But maintaining the status quo ignores the fundamental principles that are at the heart of our justice system in America.

As one observer has noted, by the time in 1791 of the grand jury’s incorporation into our constitutional structure, “the grand jury had achieved renown as a bulwark against despotism, a protector of the common man against oppressive prosecution. The institution’s investigatory role was secondary.” But in the subsequent 200 years, “the protective function has been trivialized and the investigatory function expanded to the point where the institution is almost precisely the opposite of what the Founding Fathers intended.”

Despite the compelling need for reform, the special jury remains largely unchanged. Two decades ago, at the strong urging of the American Bar Association and many others, Congress actively considered reform efforts. Numerous bills were introduced, detailed studies performed, and a multitude of testimony presented. Yet few changes resulted. What did result – the recording of these proceedings and issuance of prosecutorial guidelines – had little impact on the core concerns that fueled those earlier efforts.

In the intervening years, the number of federal prosecutors has exploded, while effective controls against the abuses have dwindled. The result has been an increase in prosecutorial excesses that has resulted in witness abuse and indictments that should never have been brought – destroying the lives, careers and businesses of innocent Americans. The need for federal grand jury reform, to safeguard the citizenry against such excess, has only gotten greater.

Now back in the spotlight. One can hardly open a newspaper or turn on the radio or television without hearing criticism or concerns about unfairness to citizens exposed to this process.31 Americans are troubled as their fellow citizens increasingly relate grueling and costly experiences as they emerge from testifying.

Rather than repeat the mistakes of the past, we need to learn from them and consider how best to return the institution of the special jury to its rightful place within our justice system – as a viable means for helping to ferret out criminal activity while at the same time ensuring fairness to all who come within its focus.

I am grateful, to the authors mentioned

A Special Thanks to: Frederick P. Hafetz; John M. Pellettieri of the National Association of Criminal Defense Lawyers or NACDL

You can read their article ” Time to Reform the Grand Jury” in its entirety at:

https://www.nacdl.org/Champion.aspx?id=648