Prosecutors threaten our freedom

Casey Anthony. The name and the trial spark emotion. But there is a far deeper issue lurking beneath, a monster of much greater importance.

Recent years have borne witness to the rampant rise of prosecutorial zeal in the courts. While no responsible citizen wants crime unpunished, prosecutors, in all their forms, have been growing in power and influence.

When prosecutorial power teams up with political ambition or a high-reaching career path, we must watch carefully the potential threat to individual liberty.

HISTORY OF FEDERAL GRAND JURY POWER

I want to draw your attention to a law review article, CREIGHTON LAW REVIEW, Vol. 33, No. 4 1999-2000, 821, IF IT’S NOT A RUNAWAY, IT’S NOT A REAL GRAND JURY by Roger Roots, J.D.

“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. These fundamental powers allowed grand juries to serve a vital function of oversight upon the government. The function of a grand jury to ferret out government corruption was the primary purpose of the grand jury system in ages past.”

The 5th Amendment:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.”

An article appearing in American Juror, the newsletter of the American Jury Institute and the Fully Informed Jury Association, citing the famed American jurist, Joseph Story, explained :

“An indictment is a written accusation of an offence preferred to, and presented, upon oath, as true, by a grand jury, at the suit of the government. An indictment is framed by the officers of the government, and laid before the grand jury. Presentments, on the other hand, are the result of a jury’s independent action:

‘A presentment, properly speaking, is an accusation, made by a grand jury of its own mere motion, of an offence upon its own observation and knowledge, or upon evidence before it, and without any bill of indictment laid before it at the suit of the government. Upon a presentment, the proper officer of the court must frame an indictment, before the party accused can be put to answer it.’

Back to the Creighton Law Review:

“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.”

So, it’s clear that the Constitution intended to give the grand jury power to instigate criminal charges, and this was especially true when it came to government oversight. But something strange happened on the way to the present. That power was eroded by a lie enacted by the legislative branch. The 5th Amendment to the Constitution still contains the same words quoted above, but if you sit on a grand jury and return a “presentment” today, the prosecutor must sign it or it probably won’t be allowed to stand by the judge and the criminal charges you have brought to the court’s attention will be swept away. And the reason for this can be found in a legislative lie of epic proportions.

Mr. Roots weighs in again:

“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]“

Rule 7 of the Federal Rules of Criminal Procedure (FRCP):

“An offense which may be punished by death shall be prosecuted by indictment. An offense which may be punished by imprisonment for a term exceeding one year or at hard labor shall be prosecuted by indictment…”

No mention of “presentments” can be found in Rule 7. But they are mentioned in Note 4 of the Advisory Committee Notes on the Rules:

“4. 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.”

The American Juror published the following commentary with regards to Note 4:

“[W]hile the writers of the federal rules made provisions for indictments, they made none for presentments. This was no oversight. According to Professor Lester B. Orfield, a member of the Advisory Committee on Rules of Criminal Procedure, the drafters of Federal Rules of Criminal Procedure Rule 6 decided the term presentment should not be used, even though it appears in the Constitution. Orfield states [22 F.R.D. 343, 346]:

‘There was an annotation by the Reporter on the term presentment as used in the Fifth Amendment. It was his conclusion that the term should not be used in the new rules of criminal procedure. Retention 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. It has become the practice for the United States Attorney to attend grand jury hearings, hence the use of presentments have been abandoned.’ “

That’s a fascinating statement: “Retention might encourage…the grand jury [to] act from their own knowledge or observation.” God forbid, right America? The nerve of these people. They have the nerve to put on the record that they intended to usurp our Constitutional power, power that was intended by the founding fathers, in their incredible wisdom, to provide us with oversight over tyrannical government.

And so they needed a spin term to cast aspersions on that power. The term they chose was, “runaway grand jury”, which is nothing more than a Constitutionally mandated grand jury, aware of their power, and legally exercising that power to hold the federal beast in check, as in “checks and balances”.

The lie couldn’t be inserted into the Constitution, so they put it in a statute and then repeated it. And scholars went on to repeat it, and today, as it stands, the grand jury has effectively been lied into the role of submissive puppet of the US Attorney.

http://harmonyhealth.wordpress.com/2009/03/21/grand-jury-is-the-4th-branch-of-our-government-start-one-today/

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.