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The Grand Jury as Guardian of the People

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July 11, 2012 in Politics

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The grand jury, once the guardian of the people capable of rooting out corruption, has been reduced to a tool of the prosecutor. A state initiative can repair the situation.

By Richard Walbaum

The grand jury is an accusing body, with the power to investigate into any crime or misdeed by government or person, and return a formal accusation which will be tried by a trial jury. If the grand jury acts on its own volition, it issues a presentment; if a prosecutor or district attorney brings the case before the grand jury, and the grand jury approves it for prosecution, that is called an indictment. Federal law,[1] and many states’ law, requires that a person cannot be prosecuted for a crime unless by grand jury indictment; this protects the innocent from arbitrary and malevolent prosecutions, and prevents government from “throwing the book” at someone. Unless the grand jury is convinced that a crime was committed, it would not indict.

The grand jury was once the guardian of the people with total independence to investigate into anything it chose; that was its original design. Unfortunately, the grand jury today is a shadow of its former self, and is now but a tool of the prosecutor who controls its every move; it has been said: “a grand jury would ‘indict a ham sandwich,’ if that’s what you wanted.” And,

“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.” 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.”

A “run-away grand jury” is one that is not controlled by the prosecutor, and acts on its own volition to call witnesses and investigate as it sees fit. At the federal level, the modern practice is to forbid the grand jury from acting on their own and issuing presentments (even though presentment is in the Fifth Amendment).[1] Government officials are often protected from prosecution when the ability to issue a presentment is taken from the grand jury, for without presentment, only government can indict government, who may not want to.

But just as the courts give the federal government every power enumerated in the constitution, or necessary by implication, so too the people retain all their rights enumerated (i.e. presentment of the Fifth Amendment) and implied. The right needs to be claimed, anything that the courts may say to the contrary notwithstanding; a federal grand jury constitutionally has the right to disobey. This prohibition is the result of rule making,[2] and the Supreme Court stated:

“As courts have been presented with the need to enforce constitutional rights, they have found means of doing so. … Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.” Miranda v. Arizona 384 U.S. 436, 490-491 (1966).

At the state level, those states that have the power of initiative can reform their grand juries. However, there are difficulties that require a change in the consciousness of the people before such change can occur. See here.

A grand jury is composed of a group of people randomly selected (with some screening), and depending on state or federal law, numbers from not less than twelve nor more than twenty-three persons,[3] and serves a term of perhaps one or two years. Only the prosecutor’s case is brought before a grand jury, not the defense. The grand jury must be convinced, that based upon the prosecutor’s evidence alone, a trial jury will convict. All grand jury deliberations are secret.

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Richard Walbaum, the author of “The LAWFUL Remedy to Tyranny” and “Designed for Plunder,” promotes the restoration of righteousness through natural law. Find Richard at www.NaturalLawRemedy.com; follow him @legaltender9.

 

Footnotes:

[1] The Fifth Amendment reads: “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, when in actual service in time of War or Public danger; …”

[2] Rule 6 of the Federal Rules of Criminal Procedure, codified in 1946, subverted well-settled law. See http://www.constitution.org/lrev/roots/runaway.htm, Sec. I.

[3] The Grand Jury, George Edwards Jr., p. 45.

 

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